In the Supreme Court of Georgia

Decided: October 11, 2023

S23A0684 JONES v. THE STATE.

MCMILLIAN, Justice.

Xavier R. Jones appeals his convictions for felony murder and 

other crimes in connection with the shooting death of Christopher 

Crumby.

1 On appeal, Jones asserts that the evidence at trial was 

insufficient to sustain his convictions, the trial court erred in not 

1 Jones shot Crumby on July 27, 2010. In October 2010, a Thomas County 

grand jury indicted Jones—along with his co-defendants Jalen Rauls and 

Dezmond Lovejoy—for felony murder based on armed robbery, armed robbery,

aggravated assault, and possession of a firearm during the commission of a 

felony. Jones was tried before a jury, separately from his co-defendants, from 

February 11 to 14, 2013, and the co-defendants’ cases are not a part of this 

appeal. The jury found Jones guilty on all counts, and the trial court sentenced 

Jones to life in prison on the felony murder count, twenty years in prison on 

the aggravated assault count, and another five years in prison on the count of 

possession of a firearm, all to run consecutively. The armed robbery count was 

merged with the felony murder conviction for sentencing.

Jones filed a timely motion for new trial through his trial attorneys. He 

was later appointed new counsel, who filed an amended motion for new trial 

on February 21, 2022. After a hearing on March 21, 2022, the trial court denied 

the motion, as amended, on July 28, 2022. Jones filed a timely notice of appeal 

on August 24, 2022; the case was docketed to the April 2023 term of this Court 

and thereafter submitted for a decision on the briefs.
2

granting his motion for directed verdict at trial, and the trial court 

erred in not granting his motion for new trial on the general grounds. 

Jones also asserts that the trial court erred by admitting a video 

recording of Jones’s interview in which Jones remained silent in 

response to some of the investigators’ questions and comments, in 

denying his motion for mistrial on that ground, and by failing to 

meaningfully respond to a question submitted by the jury during 

deliberations. For the following reasons, we affirm Jones’s 

convictions for felony murder and possession of a firearm during the 

commission of a felony but vacate his conviction for aggravated 

assault as it should have merged into his felony murder conviction.

At trial, the evidence showed the following. On July 27, 2010, 

Jones and his co-defendants, Jalen Rauls and Dezmond Lovejoy, 

attended a gathering in a Thomasville neighborhood. Crumby was 

also at the gathering and was seen with a bag of marijuana that he 

was “bagging up” into smaller bags. Later, Jones told Rauls and 

Lovejoy that he wanted to steal Crumby’s marijuana. Rauls and 
3

Lovejoy testified that they agreed to Jones’s plan to rob Crumby of 

his marijuana at gunpoint that night, but Rauls and Lovejoy carried 

unloaded firearms, and they did not plan on shooting or killing

Crumby.2 At around 11:00 p.m., as Crumby walked along a sidewalk

in the neighborhood, he encountered Rauls and Lovejoy, while Jones 

crouched in the tall grass of an adjacent empty lot to conceal himself. 

Rauls and Lovejoy said that when Crumby approached the lot, Jones 

stood up and shot Crumby three times. Three other witnesses saw 

the shooting, and one of them who knew Jones identified him as the 

shooter. Rauls and Lovejoy testified that they did not see Crumby

fire any shots. Although Lovejoy and another witness saw Crumby 

reaching for his pocket, they did not see Crumby draw a gun. 

Multiple witnesses in the area at the time of the shooting 

testified to hearing between two to four gunshots. Most witnesses—

including Rauls and Lovejoy—reported a total of three gunshots. Two 

of the witnesses testified that they saw muzzle flashes from only one 

2 Raul and Lovejoy each later pleaded guilty to armed robbery.
4

firearm. Those two witnesses also testified that after shooting

Crumby, Jones approached Crumby and kicked him, as if checking to 

see if he was responsive,3 before reaching down toward Crumby.

Lovejoy and Rauls, as they fled the scene, saw Jones reach into 

Crumby’s pocket and remove marijuana, and Lovejoy, Rauls, and 

another witness testified to seeing Jones after the shooting with

marijuana that was packaged like the marijuana previously seen in 

Crumby’s possession.

Rauls and Lovejoy testified that when Jones later caught up 

with them after the shooting, he told them he had just shot Crumby, 

but he never claimed that Crumby had fired first or that Jones fired 

in self-defense.4 A friend who picked up Jones, Rauls, and Lovejoy

shortly after the shooting also testified that Jones said that he had 

3 The medical examiner who performed the autopsy testified that 

Crumby died from a gunshot wound to the forehead and that anyone who 

received such a wound would be immediately incapacitated.

4 In response to defense counsel’s question on cross-examination, Lovejoy 

testified that he recalled that Jones had said that Crumby was trying to shoot 

him, but, later, on re-direct, he testified that prior to the day of the trial, Jones 

had never told him that Crumby shot at him and that he only heard that Jones 

had said such a thing from defense counsel.
5

“just shot someone,” but no one mentioned that Crumby fired any 

shots. 

Jones testified at trial that the robbery was planned solely by 

Rauls and Lovejoy, whom he accompanied only as a friend without 

any intention or agreement to assist them. Jones said that he hid in 

the tall grass behind a fence—obscuring himself from the direction 

of Crumby’s approach—to avoid taking any part in the robbery. 

Jones further testified that he fired two shots at Crumby in selfdefense, only after Crumby first shot at Jones. Jones also denied

taking Crumby’s marijuana, testifying that he only approached 

Crumby to look for Crumby’s gun but could not find it. 

A revolver was recovered from the sidewalk about ten to twenty 

feet from Crumby’s body, and although the revolver was later 

connected to Crumby, no gunpowder residue test was conducted to 

see if Crumby fired the revolver because investigators believed such 

testing would likely show a false positive given that Crumby was

himself shot. Moreover, the Thomasville Police Department (TPD) 
6

did not secure the crime scene with police tape after the shooting, and 

the next day city workers mowed the tall grass in the empty lot where 

Jones had concealed himself before police investigators searched it.

When a search was later conducted, TPD and Georgia Bureau of 

Investigation (GBI) investigators found two spent cartridges linked 

to Jones’s firearm and brand of ammunition but recovered no bullets 

linked to Crumby’s revolver in the vicinity. .

5 One spent cartridge was 

found in the cylinder behind the revolver’s barrel. However, a 

firearms expert could not determine whether it had been fired during 

or prior to Crumby’s shooting. 

Jones turned himself in to a police station a few days after the 

shooting, and he was then interviewed by investigators. During that 

interview, Jones denied shooting Crumby or even being at the crime 

scene. However, two years later, at the preliminary hearing, after the 

State revealed that investigators had recovered Crumby’s revolver, 

5 Jones argued at trial that failing to secure the lot and allowing mowers 

to cut the grass compromised the crime scene and undermined the validity of 

the ballistics evidence.
7

Jones admitted he shot Crumby, but claimed that he had done so in 

self-defense. At trial, Jones admitted that he made no mention that 

Crumby had a gun, that Crumby fired first, or that Jones shot 

Crumby only to defend himself until the preliminary hearing. Jones

said that he had not mentioned Crumby’s revolver or being fired upon 

during that period because he had doubted himself as to whether 

Crumby had fired at him and that he was unaware of the defense of 

self-defense before his counsel told him about it.

1. Turning first to Jones’s related arguments in connection with 

the sufficiency of the evidence presented at trial, we see no merit in 

his claims.

(a) Sufficiency: In the first of these arguments, Jones asserts, 

generally, that the evidence was constitutionally insufficient to 

support his convictions.6 “When reviewing the sufficiency of the 

6 Although Jones challenges the sufficiency of the evidence to support all 

of his convictions, his argument as to the armed robbery charge is moot because 

he was not sentenced on that charge. See Rich v. State, 307 Ga. 757, 759 (1) 

n.2 (838 SE2d 255) (2020). Nevertheless, we consider the sufficiency of the 

evidence to show armed robbery in the context of the felony murder charge.
8

evidence, we view the evidence presented in the light most favorable 

to the verdicts to determine whether a rational trier of fact could have 

found the defendant guilty beyond a reasonable doubt.” Ward v. 

State, 316 Ga. 295, 298 (2) (888 SE2d 75) (2023), citing Jackson v. 

Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)

(1979). “Under this review, we must put aside any questions about 

conflicting evidence, the credibility of witnesses, or the weight of the 

evidence, leaving the resolution of such things to the discretion of the 

trier of fact.” Frazier v. State, 308 Ga. 450, 452-453 (2) (a) (841 SE2d 

692) (2020) (citation and punctuation omitted).

Jones makes no effort in his appellate briefing to address the 

charges individually or to identify the elements he contends the State 

failed to prove, and we conclude that the evidence recounted above is 

sufficient to support his convictions. See Charles v. State, 315 Ga. 

651, 651, 654-55 (2) (884 SE2d 363) (2023) (affirming convictions 

where defendant asserted that the evidence was constitutionally 

insufficient but failed to articulate “why he contend[ed] that the trial 
9

evidence was insufficient to support his convictions, much less 

formulated an argument showing that the trial evidence failed to 

prove an essential element of any crime charged beyond a reasonable 

doubt”); Davis v. State, 312 Ga. 870, 871, 873 (1) n.2 (866 SE2d 390)

(2021) (affirming a defendant’s convictions where defendant’s only 

argument was a meritless claim that the State failed to disprove his 

self-defense theory and he “ha[d] not otherwise shown that the 

evidence supporting [his] convictions was insufficient as a matter of 

constitutional due process”); Tyler v. State, 311 Ga. 727, 732-33 (2)

(859 SE2d 73) (2021) (holding that the evidence showing that the 

defendant shot the victim before taking property was constitutionally 

sufficient to support his conviction for armed robbery and explaining 

that “[a] defendant may be convicted of committing a robbery if he 

kills the victim first and then takes property in his possession”). 

(b) Directed verdict: Jones next asserts that the trial court erred 

in denying his motion for directed verdict and merely incorporates 

his cursory arguments with regard to the sufficiency of the evidence 
10

as support for this argument. “The standard of review for the denial 

of a motion for a directed verdict of acquittal is the same as for 

determining the sufficiency of the evidence to support a conviction.” 

Monroe v. State, 315 Ga. 767, 768 (1) (884 SE2d 906) (2023) (citation 

and punctuation omitted). See Holmes v. State, 307 Ga. 441, 443 (1) 

(b) (836 SE2d 97) (2019) (citing Jackson standard for reviewing 

denial of directed verdict of acquittal).

Because we have determined that the evidence was sufficient as 

a matter of constitutional due process, we conclude that the trial 

court did not err in denying Jones’s motion for a directed verdict. See 

Ward, 316 Ga. at 300 (4) (where the evidence was sufficient to 

support the defendant's convictions, the trial court did not err in 

denying his motion for directed verdict).

(c) General Grounds: In the third of these arguments, Jones 

argues that the trial court erred in failing to grant his motion for new 
11

trial on the general grounds under OCGA §§ 5-5-20 and 5-5-21.7 But 

this argument is “not properly addressed to this Court as such a 

decision is one that is solely within the discretion of the trial court.” 

Boles v. State, 316 Ga. 209, 215 (2) n.8 (887 SE2d 304) (2023) 

(citation and punctuation omitted). “Therefore, when a defendant 

appeals the trial court's denial of a motion for new trial, an appellate 

court does not review the merits of the general grounds.” Id. See also 

Ridley v. State, 315 Ga. 452, 456 (3) (883 SE2d 357) (2023) (emphasis 

omitted). 

Here, the trial court’s order denying the motion for new trial 

cites the correct standard for considering the general grounds in 

denying Jones’s motion for new trial, and there is nothing further 

7 OCGA § 5-5-20 provides that “[i]n any case when the verdict of a jury 

is found contrary to evidence and the principles of justice and equity, the judge 

presiding may grant a new trial before another jury.” OCGA § 5-5-21 states 

that “[t]he presiding judge may exercise a sound discretion in granting or 

refusing new trials in cases where the verdict may be decidedly and strongly 

against the weight of the evidence even though there may appear to be some 

slight evidence in favor of the finding.”
12

for this Court to review. See Doricien v. State, 310 Ga. 652, 653 (1) 

n.2 (853 SE2d 120) (2020) (nothing for appellate court to review 

where defendant “simply disagrees with the trial court’s decision to 

deny him relief” under the general grounds). 

2. Jones also contends that the trial court erred in admitting

into evidence a video recording of his police interview and in denying 

his motion for mistrial based thereon, arguing that because the 

recording showed that Jones failed to respond to some of the 

investigators’ questions and comments, including whether Jones had 

acted in self-defense, the State intentionally and improperly used his 

silence as direct evidence of his guilt.

At trial, the State played the first 48 minutes and 42 seconds of 

the recorded interview for the jury. The recording shows that before 

Jones was questioned, TPD Detective Louis Schofill read Jones his 

rights under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 

694) (1966), including his right to remain silent. Jones verbally 

acknowledged each right and signed the TPD’s standard form
13

waiving those rights.

8 After Jones signed the waiver, Detective 

Schofill and GBI Special Agent Bahan Rich informed Jones that 

based on statements by his co-defendants and other witnesses, they 

had already concluded that Jones, Rauls, and Lovejoy planned to rob 

Crumby at gunpoint; that Jones shot Crumby; and that Jones took 

Crumby’s marijuana from his pockets before fleeing the scene. 

Throughout the interview, Jones consistently denied shooting 

Crumby or even being present when Crumby was shot. 

At one point during the interview, the investigators played

Jones a recorded phone call in which Rauls admitted that he and 

Jones planned to rob Crumby and that Jones shot Crumby. After 

that recording was played, Jones stopped verbally responding to 

most of the investigators’ remaining questions, although he 

sometimes shook his head from side to side, and when he did speak,

8 At no point during the portion of the interview played for the jury did 

Jones formally rescind the waiver of his right to silence or indicate that he 

wanted to halt the interview. 
14

he persisted in denying that he shot Crumby. Throughout the 

interview, the investigators repeatedly pressed Jones to give his side 

of the story, and Special Agent Rich suggested multiple times that 

Jones may have shot Crumby because he believed that Crumby was 

reaching for a gun, but Jones did not reply. Both officers told Jones 

that they believed the shooting was accidental and that he was “a 

good kid” but his silence and refusal to explain his actions would 

make him appear to be guilty or even “like a stone-cold killer.” Jones 

replied that he had not shot Crumby.

Jones’s counsel raised no contemporaneous objection when this

recording was played at trial. Although he indicated that his cocounsel “might address” an objection to the trial court at the next 

break, no such objection appears in the record. After the video 

recording was played and the jury was excused for the day, Jones’s 

counsel objected and moved for a mistrial on the grounds that the 

evidence from the recording was substantially more prejudicial than 

probative and that it was a comment on Jones’s constitutional right 
15

to remain silent because the investigators told him at several points 

that his silence was proving his guilt; and that as long as what Jones 

told the investigators was exculpatory, it should not have been 

admitted.9 The trial judge denied the motion for mistrial, noting that 

he had reviewed the interview recording and he viewed the 

investigators’ approach as aggressive interview tactics—not as 

impermissible commentary on Jones’s exercise of the right to remain 

silent.10

As an initial matter, we must determine the appropriate 

standard of review given the timing of Jones’s objection and motion 

9 Jones’s counsel inexplicably argued: “And also, it’s exculpatory because 

even if what he’s telling the police at the time for whatever reason doesn’t turn 

out to be true, as long as it’s not incriminating him in connection with the 

crime, in other words, as long as he’s not saying, well, I was there but I didn’t 

take part in the robbery, I mean, he can give an alibi, he can give I didn’t do it, 

as long as it’s exculpatory, it shouldn’t be admitted.”

10 Later, in its order denying the motion for new trial, the trial court 

indicated that after the motion hearing, it had reviewed the recorded interview 

again. Based on the review of the recording, the trial court continued to believe 

that the investigators’ comments were an attempt to elicit Jones’s version of 

events, and were “aggressive interrogation techniques attempting to gain the 

truth,” and not improper comments on Jones’s exercise of the right to silence. 

The trial court further found that the evidence did not go to the substance of 

Jones’s defense and that no substantial prejudice resulted from the 

introduction of that evidence.
16

for mistrial. “In order to preserve an objection for [ordinary] appellate 

review, the specific ground of the objection must be made at the time 

the challenged evidence is offered.” Anthony v. State, 302 Ga. 546, 

549 (II) (807 SE2d 891) (2017) (citation and punctuation omitted); 

Similarly, “[a] motion for mistrial must be promptly made as soon as 

the party is aware of the matter giving rise to the motion.” Ragan v. 

State, 299 Ga. 828, 833 (3) (792 SE2d 342) (2016) (citation and 

punctuation omitted) (motion for mistrial untimely when motion was 

made after State concluded direct examination of witness during 

which photographs at issue were admitted). It is clear from the record 

that the objection and motion for mistrial were not timely, as they 

were not made contemporaneously with the introduction of the 

evidence but rather at the end of the day after the recording had been 

played for the jury and the jurors had been dismissed. Moreover, 

Jones has not pointed us to, nor have we located, anything in the 

record to show that he otherwise preserved these issues for direct 
17

appellate review.

11 See Daker v. State, 300 Ga. 74, 75 (1) (792 SE2d 

382) (2016) (on appeal, “[i]t is the burden of the complaining party, 

including pro se appellants, to compile a complete record of what 

happened at the trial level.” (citation and punctuation omitted)). 

The failure to raise a timely motion for mistrial waives for 

appellate review any alleged error in the trial court’s denial of the 

motion. See Neloms v. State, 313 Ga. 781, 785 (2) (873 SE2d 125) 

(2022) (“If the defendant did not make a contemporaneous motion for 

a mistrial at the time the defendant became aware of the matter 

11 Jones has not pointed us to any earlier objections he raised to the 

admission of the recording in the appellate record, such as a motion to 

suppress, nor did we find any such objections. The record includes a request

filed by the State for a pretrial determination of the admissibility of that 

evidence, and apparently a motions hearing was scheduled, but neither a

transcript of that hearing nor an order ruling on the State’s motion is included 

in the appellate record. The trial court’s order denying the motion for new trial

and the trial transcript indicate that the trial court ruled before trial that the 

State could play the first 56 minutes, 22 seconds of the recording. And although

the motion-for-new-trial order indicates that Jones’s counsel objected to the 

use of the recorded interview on the grounds that it was more prejudicial than 

probative and that it contained improper comment on Jones’s silence in 

response to questions asked during the interview, it does not state that Jones 

raised these objections before he voiced them at trial in connection with his 

motion for mistrial. Therefore, we cannot discern from the record that Jones 

properly preserved his objection to this evidence for ordinary appellate review. 
18

giving rise to the motion, then the defendant has waived review of 

this issue on appeal.” (citation omitted)).

Turning to Jones’s separate claim that the trial court abused its 

discretion by admitting the video recording, the absence of a timely 

objection limits our review of the admission of the evidence to plain 

error. See Huff v. State, 315 Ga. 558, 564-65 (2) (883 SE2d 773) (2023) 

(failure to timely object to admission of evidence limits review to plain 

error only). To establish plain error, Jones “must point to an error 

that was not affirmatively waived, the error must have been clear 

and not open to reasonable dispute, the error must have affected his 

substantial rights, and the error must have seriously affected the 

fairness, integrity, or public reputation of judicial proceedings.” Lopez

v. State, 310 Ga. 529, 537 (7) (852 SE2d 547) (2020) (citation and 

punctuation omitted), overruled on other grounds by Johnson v. 

State, 315 Ga. 876, 877, 884 (2) (b) (885 SE2d 725) (2023).Generally 

speaking, an error that affects substantial rights is one that “affected 

the outcome of the trial court proceedings.” Simmons v. State, 314 
19

Ga. 883, 889 (2) (880 SE2d 125) (2022) (citation omitted). “The Court 

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

appellant fails to establish one of them.” Id. (citation omitted).

Even assuming (without deciding) that it was clear error to 

admit the portions of the video recording that Jones contends 

contained commentary on his silence, we conclude that any error did 

not affect Jones’s substantial rights because the evidence of Jones’s 

silence in the face of the investigators’ questions and comments was 

cumulative of other properly admitted evidence at trial and was 

harmless in light of the substantial evidence of Jones’s guilt. 

Here, the State presented testimony from three witnesses who 

spoke with Jones in the aftermath of the shooting—Rauls, Lovejoy, 

and the friend who gave the three co-defendants a ride that night—

and they all testified that while Jones admitted to shooting Crumby, 

Jones did not claim that Crumby drew a gun, that Crumby shot first, 

or that he shot to defend himself. Jones does not contest the 

admissibility of this testimony. And Jones himself testified that he 
20

did not make such a claim for two years until the preliminary 

hearing. Thus, any allegedly impermissible commentary on Jones’s 

failure to respond to some of the investigators’ questions and 

comments was cumulative of other properly admitted evidence 

showing that he did not claim self-defense for two years after the 

shooting. 

And the evidence of Jones’s guilt was substantial. Multiple 

witnesses saw Jones shoot Crumby, and Jones himself admitted to 

the shooting to his co-defendants. Although Jones initially denied 

shooting Crumby or even being at the crime scene in his interview 

with investigators, Jones eventually admitted to the shooting in 

court. And, although he asserted he shot in self-defense, he was the 

only witness to testify that Crumby pulled or shot a weapon that 

night. Multiple witnesses from the scene testified that Crumby did 

not draw his firearm, did not shoot at Jones, and that the muzzle 

flash came from only one gun. Other than Jones’s testimony, the 

evidence was consistent in showing that Jones came out of his hiding 
21

place by the fence, shot at Crumby, and stole Crumby’s marijuana, 

but that Crumby did not fire at Jones. 

Under these circumstances, Jones has failed to establish how 

the admission of the recorded interview affected the outcome of the 

trial, and thus he cannot prevail on his claim of plain error. See

Perryman-Henderson v. State, 316 Ga. 626, 632-33 (3) (889 SE2d 814)

(2023) (appellant failed to show how alleged error affected his 

substantial rights in light of the evidence against him, which 

included eyewitness testimony that was not consistent with his 

version of events); Merritt v. State, 311 Ga. 875, 889 (6) (860 SE2d 

455) (2021) (no plain error in admitting Rule 404 (b) evidence because 

of “significant physical and forensic evidence” establishing guilt and 

testimony by a witness to the shooting and other testimony of prior 

acts of domestic violence against victim, which contradicted 

defendant’s accident defense). 
3. Jones contends that the trial court erred in failing to 

meaningfully respond to a note submitted by the jury during 

deliberations. 

After closing arguments, the trial court charged the jury on

felony murder and, at the request of Jones’s counsel, on the offense of

voluntary manslaughter. Approximately one hour into deliberations, 

the jury submitted a note to the court that read “definition of felony 

murder” and underneath it, “involuntary murder.” In a discussion 

with counsel, the trial court noted that “involuntary murder . . . is not 

what we’ve been talking about,” and then informed the attorneys of 

his plan to re-read to the jury his prior charges on felony murder and 

voluntary manslaughter without directly addressing the phrase 

“involuntary murder.” When asked whether he had “any problems” 

with that plan, Jones’s counsel raised no objection, but replied that 

he had a request that the trial court ask the jury whether the phrase 

“involuntary murder” was a question or a verdict, “because it makes 

a difference.” The trial court replied, “Whatever. It’s a question now,” 

and confined his response to re-reading the charges on felony murder, 
23

which also included the definition of armed robbery, and voluntary 

manslaughter. When asked whether he had any exceptions to the 

recharge, Jones’s counsel replied in the negative. The record does not 

show that the jury asked any additional questions about “involuntary 

murder” after having been recharged by the trial court.

Because Jones did not object to the trial court’s response to the 

jury’s note, we are limited to reviewing Jones’s argument for plain 

error. See Lopez, 310 Ga. at 537 (7) (failure to object to recharge limits 

review to plain error). See also Blake v. State, 292 Ga. 516, 517 (2)

(739 SE2d 319) (2013) (same). As Jones has failed to carry his burden 

of showing that the trial court committed clear and obvious error, we 

conclude that Jones has failed to show plain error. 

It is well settled that “[a] trial court has a duty to recharge the 

jury on issues for which the jury requests a recharge.” Flood v. State, 

311 Ga. 800, 806 (2) (b) (860 SE2d 731) (2021) (citation and 

punctuation omitted). But “our precedent holds that . . . [t]he need, 

breadth, and formation of additional jury instructions are left to the 
24

sound discretion of the trial court.” Lewis v. State, 311 Ga. 650, 663

(3) (859 SE2d 1) (2021) (citation and punctuation omitted). 

Here, the jury sought the definition of felony murder and wrote 

the phrase “involuntary murder” below that request, without asking 

a direct question about this concept. Jones argues that the jury’s 

reference to the non-existent legal concept of “involuntary murder” 

demonstrates confusion on the jury’s part about the charges at issue 

in the case and that the trial court should have sought clarification 

on what the jury meant by “involuntary murder” and should have 

clearly explained that it is “a non-existent legal concept.”12

In support of this argument, Jones relies on Freeman v. State, 

142 Ga. App. 293, 294 (4) (235 SE2d 560) (1977). In that case the 

jury asked two questions during deliberations—a question about the 

definition of burglary and a second question “as to the fact of ‘guilt 

12 “Involuntary murder” is not a legal concept under Georgia law. See 

OCGA § 16-5-1. Involuntary manslaughter is the only involuntary form of 

homicide recognized by Georgia criminal law, but Jones’s counsel did not 

request, and the trial court did not provide, a jury charge on that offense. See 

OCGA § 16-5-3.
25

by association and knowledge of the crime prior to and after the 

crime had been committed is in fact guilt’ that we should be able to 

decide upon.” Id. (punctuation omitted). The trial court recharged 

the jury on the definition of burglary and then instructed the jury to 

consider the evidence and instructions previously given. See id. The 

Court of Appeals held that the trial court instead “should have 

instructed the jury that there is no such thing as guilty by 

association and that they should dismiss that thought from their 

minds” because when a jury “is confused and in doubt and requests 

further instructions on a particular point, it is the duty of the court 

to further instruct them.” Id. 

Freeman is distinguishable. In Freeman, the jury asked a 

question about “guilt by association,” which the trial court did not 

address except by referring the jury generally to the evidence and
26

instructions as previously given.13 See 142 Ga. App. at 294. In 

contrast, the trial court here acted within its discretion in 

interpreting the jury’s note as asking for the definition of voluntary 

manslaughter, which had been previously given, and in recharging 

the jury on that definition. See Flood, 311 Ga. at 806 (2) (b) (trial 

court has duty to recharge on issues for which the jury requests a 

recharge).

Because Jones has not pointed to any case, and we have found 

none, that supports that it is clear legal error for the trial court to fail 

to seek clarification from the jury under these circumstances or to 

charge that “involuntary murder” is not a valid legal concept, we 

conclude that Jones has not been able to establish plain error. See 

13 Some of us question whether the Court of Appeals correctly 

determined that the trial court abused its discretion in referring the jury to the 

evidence and instructions as previously given under these circumstances. See 

Lewis, 311 Ga. at 663 (3) (“[A] trial court has discretion to decline to answer the 

jury’s question directly, and instead to direct the jurors to rely on instructions 

previously given.” (citation and punctuation omitted)); Redding v. State, 296 Ga. 

471, 473 (2) (769 SE2d 67) (2015) (no plain error in directing jury to rely on 

previous instructions, as “[w]e have never held . . . that the court must engage 

in a question and answer session with the jury or instruct the jurors individually 

on how to apply the law to the facts.” (citation and punctuation omitted)).
27

Stepp-McCommons v. State, 309 Ga. 400, 405-406 (3) (845 SE2d 643)

(2020) (rejecting appellant’s claim that the trial court plainly erred 

when it directed the jury to its prior instructions); Jackson v. State, 

306 Ga. 475, 478-79 (3) (831 SE2d 755) (2019) (no abuse of discretion 

in the trial court’s decision to recharge the jury in full on malice 

murder and voluntary manslaughter in response to the jury’s 

question asking for clarification on the difference between malice 

murder and involuntary manslaughter, the latter of which was not 

an issue in the case).

4. Although Jones does not raise an issue regarding his 

sentencing on appeal, we have identified a merger error in the trial 

court’s sentence on aggravated assault, which we address sua sponte. 

See Dixon v. State, 302 Ga. 691, 696-97 (4) (808 SE2d 696) (2017) 

(“We have the discretion to correct merger errors sua sponte . . . 

because a merger error results in an illegal and void judgment of 

conviction and sentence.”). Jones was found guilty of felony murder 

predicated on armed robbery, armed robbery, and aggravated 
28

assault.14 The trial court sentenced Jones to life in prison on the 

felony murder count and twenty years in prison on the aggravated 

assault count, to run consecutively, but merged the guilty verdict on 

the predicate offense of armed robbery for sentencing.

However, “[b]ecause there is no element of aggravated assault 

with a deadly weapon that is not contained in armed robbery, that 

form of aggravated assault will merge into armed robbery if the 

crimes are part of the same act or transaction.” Hood v. State, 309 

Ga. 493, 502-03 (4) (847 SE2d 172) (2020) (citation and punctuation 

omitted). The same merger analysis applies whether considering 

armed robbery or felony murder based on armed robbery and 

aggravated assault with a deadly weapon. See Long v. State, 287 Ga. 

886, 888 n. 2 (700 SE2d 399) (2010). Here, the indictment charged 

Jones with aggravated assault with a deadly weapon, “to wit, during 

the commission of the offense of armed robbery.” And the evidence at 

14 Jones was also convicted of possession of a weapon during the 

commission of a felony, but that conviction is not a part of the merger analysis.
29

trial showed that the aggravated assault of Crumby was part of the 

same transaction as the armed robbery of Crumby. Therefore, the

aggravated assault count should have merged with the conviction for 

felony murder based on armed robbery. See Hood, 309 Ga. at 502-03;

Long, 287 Ga. at 888-89 (2) (recognizing that aggravated assault with 

a deadly weapon merges into felony murder predicated on armed 

robbery). Jones’s conviction for aggravated assault is hereby vacated.

Judgment affirmed in part and vacated in part. All the Justices 

concur.