NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: January 28, 2025
S24A0882. HOLLOWAY v. THE STATE.
ELLINGTON, Justice.
Malcolm Holloway appeals his convictions for felony murder
and related crimes arising from the fatal shooting of Javontay Carr
during the attempted armed robbery of Harshvadan, Sumitra, and
Kumar Patel on June 27, 2018.1 For the reasons explained below,
1 On October 3, 2018, a Troup County grand jury indicted Holloway,
Anthony O’Neal, Anthony Morris, Christopher Jacobs, and Sellus Colvin with
felony murder predicated on aggravated assault, criminal attempt to commit
armed robbery, and conspiracy to commit armed robbery; aggravated assault
with intent to rob; and four counts of possession of a firearm during the
commission of a felony predicated on the foregoing felonies. The grand jury
indicted O’Neal, Morris, Jacobs, Colvin, and Pamela Barker on additional
charges. O’Neal, Morris, Jacobs, Colvin, and Barker entered plea agreements
conditioned on their truthful testimony at Holloway’s jury trial, which occurred
in July and August of 2019. . The jury found Holloway guilty on all counts.
The trial court sentenced Holloway to life in prison with the possibility of
parole for felony murder and to five years in prison for each count of possession
of a firearm during the commission of a felony, with each sentence to be served
consecutively. The trial court merged the counts of criminal attempt to commit
armed robbery, conspiracy to commit armed robbery, and aggravated assault
with the felony murder count. See, e.g., Stewart v. State, 311 Ga. 471, 477 (858
we affirm.
1. Viewed in a light most favorable to the verdicts, the evidence
presented at trial showed the following. Holloway, who lived in
LaGrange, knew Christopher Jacobs and Anthony O’Neal, who lived
in Columbus, Mississippi. According to Jacobs, Holloway invited
O’Neal and Jacobs, along with Anthony Morris, Sellus Colvin, and
Carr—who were also from Mississippi—to LaGrange. Holloway
suggested they rob the Patels, who owned a gas station and checkcashing business, because Holloway believed that the Patels might
have a large amount of cash on their persons.
On June 27, 2018, O’Neal, Morris, Jacobs, Colvin, and Carr
drove from Columbus, Mississippi to LaGrange in a car that
belonged to O’Neal’s girlfriend, Pamela Barker. When they arrived
in LaGrange, they met Holloway and went to a park, where they
planned the robbery. They determined that they would ambush the
SE2d 456) (2021). Holloway timely filed a motion for new trial, which he
amended. Following a hearing, the trial court denied Holloway’s amended
motion for new trial in February 2023. Holloway timely filed a notice of appeal,
which he amended once. Holloway’s appeal was docketed to this Court’s August
2024 term and submitted for a decision on the briefs.
2
Patels on a roadside between the Patels’ gas station and the Patels’
house. Carr would pretend to change a tire on the roadside to lure
the Patels into stopping their car while Colvin, Morris, Jacobs, and
O’Neal hid in the woods beside the road to ambush the Patels once
they stopped their car. Holloway would position himself as a lookout
at a different location to alert the others when the Patels were
approaching. They agreed that they would rob the Patels but not
shoot at them. Holloway gave Morris an AK-47 and Colvin a 9mm
handgun to carry during the robbery. After leaving the park, they
went to a LaGrange motel, where surveillance video showed
Holloway renting a room for Morris, O’Neal, Carr, Jacobs, and
Colvin.
Holloway, Morris, Carr, and Colvin left the hotel briefly and
drove to Alabama with the intention of committing a different
robbery there. After failing to execute that plan, they returned to
the hotel room. Cell phone data showed Holloway’s cell phone in
Alabama at 9:36 p.m. and back in LaGrange an hour later. Over that
period, Holloway’s cell phone data also showed regular
3
communication with the phone number associated with Jacobs, who
stayed in the hotel room with O’Neal while the others went to
Alabama.
Around 11:00 p.m. that evening, the group moved into their
positions to rob the Patels. Carr, Morris, Colvin, Jacobs, and O’Neal
positioned themselves on a roadside between the Patels’ gas station
and their home. Carr pretended to change a tire on the roadside.
O’Neal, Morris, Jacobs, and Colvin hid in the nearby woods.
Holloway positioned himself nearby as the lookout. However, during
this time, Holloway continued communicating with Carr, who was
using Jacobs’s cell phone.
The Patels left their gas station at 11:40 p.m. As they
approached the robbery location, they saw a car on the roadside with
its emergency lights flashing and a man appearing to change a flat
tire. Kumar slowed his car down to determine if the driver needed
help. The Patels then saw a man come out of the woods, lifting a
gun.
Carr ran between Morris and the Patels’ vehicle and began
4
shooting at the Patels. As Carr did so, he handed Jacobs’s phone to
O’Neal, with Holloway still on the line. Morris testified that he
mistakenly thought the Patels were shooting, so he began shooting
at the Patels, but missed and accidentally shot Carr. Realizing they
were about to be robbed, the Patels sped away while bullets
shattered their car windows.
During the attempted robbery, Carr, Jacobs, and O’Neal
communicated via cell phone with Holloway. Between 11:34 p.m.
and 11:46 p.m. that evening, Holloway’s phone data showed at least
three calls initiated between Jacobs’s and Holloway’s cell phones.
According to O’Neal, when Holloway heard the shooting through the
phone, he asked O’Neal “what they were shooting for.”
Holloway did not testify at trial. However, O’Neal, Morris,
Colvin, Jacobs, and Barker testified for the State, explaining that
their plea agreements were conditioned on truthful trial testimony.
2. Holloway contends that the evidence was insufficient as a
matter of constitutional due process to authorize his conviction for
felony murder predicated on attempt to commit armed robbery,
5
conspiracy to commit armed robbery, and aggravated assault with
intent to rob. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61
LEd2d 560) (1979). We disagree.
“Under Jackson v. Virginia, we evaluate the sufficiency of
evidence as a matter of federal due process under the Fourteenth
Amendment to the United States Constitution by determining
whether a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt.” Golden v. State, 310 Ga. 538, 540 (1)
(852 SE2d 524) (2020). “This limited review leaves to the jury the
resolution of conflicts in the evidence, the weight of the evidence, the
credibility of witnesses, and reasonable inferences to be made from
basic facts to ultimate facts.” Muse v. State, 316 Ga. 639, 647 (2) (889
SE2d 885) (2023) (citation and punctuation omitted).
It is well established that “‘[e]very person concerned in the
commission of a crime is a party thereto and may be charged with
and convicted of commission of the crime.’” Milton v. State, 318 Ga.
737, 742 (2) (900 SE2d 590) (2024) (quoting OCGA § 16-2-20 (a)). To
secure a conviction for a person under a party-to-a-crime theory, the
6
State must show “that he intentionally aided or abetted in the
commission of the crimes or intentionally advised, encouraged,
counseled, or procured someone else to commit the crimes.” Frazier
v. State, 308 Ga. 450, 453 (2) (a) (841 SE2d 692) (2020). Additionally,
“[c]onviction as a party to a crime requires proof of a common
criminal intent, which the jury may infer from the defendant’s
presence, companionship, and conduct with another perpetrator
before, during, and after the crimes.” Clark v. State, 315 Ga. 423,
427 (2) (883 SE2d 317) (2023).
Holloway contends that the evidence was insufficient to convict
him of felony murder because he and the others did not plan to fire
guns during the robbery, and therefore Holloway—who was not at
the crime scene—could not reasonably foresee and was not the
proximate cause of Carr’s death. This argument fails.
“A person commits the offense of murder when, in the
commission of a felony, he or she causes the death of another human
being irrespective of malice.” OCGA § 16-5-1 (c). See also Martin v.
State, 310 Ga. 658, 660-661 (1) (852 SE2d 834) (2020). As we have
7
explained, the State must meet certain requirements to convict a
defendant of felony murder, and Holloway’s sufficiency contentions
relate to two of those requirements:
First, the predicate felony . . . must be one from which it
was reasonably foreseeable that death could result. We
have described this as a requirement that the predicate
felony was “inherently dangerous [to human life.]”
Second, the death must have been the probable or natural
consequence of the defendant’s conduct, a concept known
as “proximate cause.”
Eubanks v. State, 317 Ga. 563, 568 (2) (a) (894 SE2d 27) (2023).2
“The first requirement—that a felony must be ‘inherently dangerous
to human life’—is a ‘limitation on the type of felony that may serve
as an underlying felony for a felony murder conviction.’” Id. at (2) (a)
(i). The proximate-cause—or “legal cause”—requirement “requires
that the death actually happened in a way that was a reasonably
foreseeable result of the criminal conduct[.]” Melancon v. State, 319
Ga. 741, 750 (2) (b) (906 SE2d 725) (2024) (citation and punctuation
2 Eubanks also identifies a third requirement that the State must
establish to convict a defendant of felony murder. See Eubanks, 317 Ga. at 568
(2) (a) (“Third, in keeping with the statutory language, the death must have
been caused ‘in the commission of’ the predicate felony.”). However, Holloway
advances no argument related to that requirement.
8
omitted).
Considering first whether the felonies were inherently
dangerous, we have explained that the predicate felonies underlying
Holloway’s felony murder conviction—aggravated assault, criminal
attempt to commit armed robbery, and conspiracy to commit armed
robbery—are inherently dangerous to human life. See, e.g., Sanders
v. State, 313 Ga. 191, 198 (3) (a) (iv) (869 SE2d 411) (2022)
(“Aggravated assault has been recognized by this Court as an
inherently dangerous felony. . . . [A] conspiracy to commit an
inherently dangerous felony[] . . . would also be inherently
dangerous.”); Martin, 310 Ga. at 661 (1) (explaining that “it was not
an unforeseeable collateral consequence that someone might get
shot during the commission of” an armed robbery); Lofton v. State,
309 Ga. 349, 353 (1) (846 SE2d 57) (2020) (“[A] shooting is a
reasonably foreseeable consequence of an armed robbery and thus a
party to an armed robbery is culpable for felony murder if a fatal
shooting occurs.”); Robinson v. State, 298 Ga. 455, 457-459 (1) (782
SE2d 657) (2016) (holding that the fatal shooting of the defendant’s
9
accomplice by the victim during an attempted armed robbery was
foreseeable). Moreover, the circumstances under which these
predicate felonies were committed—an armed ambush on a dark
roadside late at night—leave us with little doubt that the evidence
supported the jury’s determination that they created a foreseeable
risk of death. See Eubanks, 317 Ga. at 573 (2) (b) (i) (explaining that
the “inherently dangerous” “requirement is addressed by assessing
the risks created by the actual circumstances in which the felony
was committed”); Robinson, 298 Ga. at 458-459 (1) (explaining that
it was reasonable to foresee that the victim, “who was attempting an
armed robbery, could be fatally wounded in attempting such a highly
dangerous enterprise”).
Turning to the proximate cause requirement, the evidence
established that the shooting “actually happened in a way that was
a reasonably foreseeable result” of the predicate felonies. Eubanks,
317 Ga. at 569 (explaining that the proximate cause requirement for
felony murder predicated on armed robbery is satisfied when the
“victim [is] in fact shot and killed by the defendant in the course of
10
the robbery . . . because one could reasonably foresee that a death
could be caused by an armed robbery in just that way.”). Indeed, the
risk that someone would die during the armed ambush materialized
when Morris shot Carr. Therefore, the evidence supported the jury’s
conclusion that the commission of the predicate felonies—
aggravated assault, criminal attempt to commit armed robbery, and
conspiracy to commit armed robbery—proximately caused Carr’s
death.
Moreover, the shooting was not, as Holloway contends, an
unforeseeable collateral consequence of the conspiracy. We have
explained
that all of the participants in a conspiracy are criminally
responsible for the acts of each, committed in the
execution of the conspiracy, and which may be said to be
a probable consequence of the conspiracy, even though the
particular act may not actually have been part of the plan.
This criminal responsibility also applies to collateral acts
of a co-conspirator, so long as such collateral acts are
reasonably foreseeable as a necessary or natural
consequence of the conspiracy.
Martin, 310 Ga. at 661 (1) (cleaned up). The evidence showed that
Holloway conspired to rob the Patels at gunpoint by inviting O’Neal,
11
Jacobs, Carr, Morris, and Colvin to LaGrange to commit a robbery,
renting a LaGrange hotel room for them, and giving Morris and
Colvin guns to carry during the robbery. Moreover, the evidence
showed—and Holloway concedes on appeal—that “Holloway’s role
[in the predicate felonies] was to alert O’Neal, Morris, Jacobs,” and
Colvin “regarding the impending arrival of the Patels on the
roadway.” App’t Rep. Br. at 3. Therefore, even if Holloway did not
specifically intend for Morris to shoot Carr, Holloway (as a
participant in the conspiracy) is responsible for the acts of his coconspirators committed in the execution of the conspiracy to commit
armed robbery, including Morris’s act of shooting Carr, and so it is
as though Holloway shot Carr. See Martin, 310 Ga. at 659, 661 (1)
(concluding that the evidence was sufficient to convict the appellant
of felony murder predicated on aggravated assault because “[i]t was
not an unforeseeable collateral consequence [of an armed robbery]
that someone might get shot,” where the appellant’s co-conspirator
fired a shot during an armed robbery that killed the robbery target’s
3-year-old son). Cf. Robinson, 298 Ga. at 458-459 (1) (“[I]t was
12
reasonable to foresee that [the accomplice], who was attempting an
armed robbery [with the appellant], could be fatally wounded in
attempting such a highly dangerous enterprise. As [the appellant]
was a party to the crime of attempted armed robbery, his acts,
therefore, were properly found to be a proximate cause of [the
accomplice’s] death, which flowed directly from the dangerous
criminal enterprise.”).
Finally, Holloway contends that the evidence was insufficient
to authorize his felony murder conviction because he lacked criminal
intent to shoot Carr. Felony murder, however, “does not require
intent to kill; rather, the defendant only must have intended to
commit the underlying felony.’” Burley v. State, 316 Ga. 796, 800 n.2
(888 SE2d 507) (2023) (citation omitted). Here, the evidence showed
that Holloway intended to commit the underlying felonies, and so it
does not matter that he lacked intent to shoot Carr. Holloway’s
sufficiency-of-the-evidence claim thus fails. 3
3 Holloway also contends that the trial court erred in denying his motion
for a directed verdict of acquittal as to the felony murder count on the same
13
3. Holloway contends that the trial court plainly erred in
omitting language concerning foreseeability and proximate
causation from its jury instruction on conspiracy. We disagree
because the trial court adequately instructed the jury on the
principles Holloway contends were erroneously omitted.
As an initial matter, Holloway concedes that we should review
this claim for plain error because he did not object to the trial court’s
omission of certain language from its conspiracy instruction at trial.
See OCGA § 17-8-58 (b); Clark v. State, 315 Ga. 423, 440 (4) (883
SE2d 317) (2023).
To establish plain error, [an appellant] must show that
the alleged instructional error was not affirmatively
waived; was clear and obvious, rather than subject to
reasonable dispute; likely affected the outcome of the
trial; and seriously affected the fairness, integrity, or
public reputation of judicial proceedings. An appellant
must establish all four elements of the test in order to
demonstrate plain error, so satisfying this test is difficult,
as it should be.
grounds that he argues the evidence was insufficient to support his felony
murder conviction. “The test established in [Jackson v. Virginia] is the proper
standard . . . for evaluating whether the trial court erred by denying a
defendant’s motion for a directed verdict of acquittal.” Rooks v. State, 317 Ga.
743, 750 (2) (893 SE2d 899) (2023). For the reasons explained in Division 2,
this claim fails.
14
Sauder v. State, 318 Ga. 791, 802-803 (5) (901 SE2d 124) (2024)
(citation and punctuation omitted). Moreover, to evaluate whether a
trial court plainly erred in failing to give a jury instruction, we “read
and consider the instructions as a whole.” Stafford v. State, 312 Ga.
811, 820 (4) (865 SE2d 116) (2021).
Here, the trial court instructed the jury on the charge of
conspiracy to commit armed robbery as follows:
A conspiracy is an agreement between two or more
persons to do an unlawful act, and the existence of a
conspiracy may be established by proof of acts and
conduct as well as by proof of an express agreement.
When persons associate themselves in an unlawful
enterprise, any act done by any party to the conspiracy to
further the unlawful enterprise is considered to be the act
of all the conspirators. However, each person is
responsible for the acts of others only insofar as such acts
are naturally and necessarily done to further the
conspiracy. Whether or not a conspiracy exists in this case
is a matter for you to determine. Presence,
companionship, and conduct before and after the
commission of the alleged offense may be considered by
you in determining whether or not such circumstances, if
any, give rise to an inference of the existence of a
conspiracy.
A person commits armed robbery when, with intent to
commit theft, that person takes property of another from
15
the person or the immediate presence of another by use of
an offensive weapon or by any replica, article, or device
having the appearance of such weapon. An offensive
weapon is any object, device, or instrument that, when
used offensively against a person, is likely to, or gives the
appearance of, being likely to or actually does result in
the death or serious bodily injury. The character of a
weapon may be established by direct or circumstantial
evidence.
The defendant is also charged with conspiracy to commit
armed robbery in Count Three of this indictment. A
person commits conspiracy to commit armed robbery
when that person, together with one or more other
persons, conspires to commit an armed robbery, and any
one or more of such persons does any overt act to bring
about the object of the conspiracy.
Additionally, the trial court instructed the jury that “each
person is responsible for the acts of others only insofar as such acts
are naturally and necessarily done to further the conspiracy[;]”
“[t]he burden of proof rests upon the State to prove . . . every
essential element of the crime charged beyond a reasonable doubt[;]”
and supporting evidence “must be sufficient to connect the accused
with a criminal act.”
Citing United States v. Johnson, 730 F2d 683, 690 (11th Cir.
1984), Holloway contends that the trial court plainly erred in
16
omitting the following language from the trial court’s instruction on
conspiracy: “[t]o find Holloway guilty as a co[-]conspirator, the jury
had to find sufficient evidence to conclude that other co-conspirators
committed the acts with which he was charged and that such acts
were a foreseeable part of the conspiracy.” Holloway also argues—
citing Everritt v. State, 277 Ga. 457, 459 (588 SE2d 691) (2003)—
that the trial court plainly erred in omitting from its conspiracy
instruction that “a defendant can be held criminally responsible for
such collateral acts only if it can be said that they are a natural and
probable consequence of the conspiracy.”
Holloway’s claim fails. To begin, the authority Holloway cites
does not require a trial court to instruct the jury using the language
Holloway contends was erroneously omitted. And neither case
involved a claim that a trial court erroneously omitted a jury
instruction. See generally Johnson, 730 F2d at 690; Everritt, 277 Ga.
at 459. Moreover, the trial court’s definitions of armed robbery and
conspiracy to commit armed robbery were substantially identical to
the relevant parts of the Code sections on conspiracy and armed
17
robbery. See OCGA §§ 16-4-8 (“A person commits the offense of
conspiracy to commit a crime when he together with one or more
persons conspires to commit any crime and any one or more of such
persons does any overt act to effect the object of the conspiracy.”);
16-8-41 (a) (“A person commits the offense of armed robbery when,
with intent to commit theft, he or she takes property of another from
the person or the immediate presence of another by use of an
offensive weapon, or any replica, article, or device having the
appearance of such weapon.”). See Harris v. State, 320 Ga. 92, 95-96
(2) (b) (907 SE2d 669) (2024) (“A strong indication the instruction
was not clearly wrong is that it was a correct statement of the law.”);
Williams, 304 Ga. at 459 (3) (explaining that the trial court’s jury
instruction on character evidence was not plain error where the
appellant “point[ed] to no authority for the proposition that the
pattern charge [was] inadequate”). Moreover, even assuming
(without deciding) that the language Holloway contends was
erroneously omitted would be a correct statement of the law, the
trial court instructed the jury that “each person is responsible for
18
the acts of others only insofar as such acts are naturally and
necessarily done to further the conspiracy[;]” supporting evidence
“must be sufficient to connect the accused with a criminal act[;]” and
“[t]he burden of proof rests upon the State to prove . . . every
essential element of the crime charged beyond a reasonable doubt.”
Therefore, when evaluated in the context of the jury instructions as
a whole, the trial court adequately instructed the jury on the
principles Holloway contends were erroneously omitted, such that
the language Holloway contends should have been charged would
have amounted to an “unnecessary, additional instruction.” Payne v.
State, 318 Ga. 249, 257 (897 SE2d 809) (2024) (“Where the jury
charge, taken as a whole, sufficiently instructs the jury on a point of
law, a trial court does not err in failing to give an ‘unnecessary,’
‘additional instruction.’”). See also Sauder, 318 Ga. at 804 (“[W]hen
evaluated in the context of the jury charge as a whole, the trial
court’s failure to expressly instruct” using this language “was not a
clear and obvious error beyond reasonable dispute.”). We cannot say
that the trial court plainly erred in this respect.
19
4. In his fourth enumeration of error, Holloway contends that
the trial court plainly erred in failing to instruct the jury on the
proximate-cause element of felony murder. However, for the reasons
explained below, this claim fails.
As an initial matter, Holloway concedes that we should apply
plain-error review because Holloway did not object to the omission
of this language at trial. See OCGA § 17-8-58 (b); Clark, 315 Ga. at
440 (4).
Pretermitting whether the trial court clearly and obviously
erred in failing to instruct the jury on proximate cause, Holloway’s
plain-error claim fails because he has not carried his burden of
showing that the “erroneous instruction actually affected his
substantial rights or likely affected the outcome of the trial[.]”
Burley v. State, 316 Ga. 796, 805 (888 SE2d 507) (2023). To begin,
the trial court instructed the jury on felony murder in accordance
with Criminal Pattern Jury Instructions, Vol. II § 2.10.20 (4th ed.
20
2007, updated July 2024).4 And even had the trial court instructed
the jury on proximate cause as Holloway contends it should have, it
is unlikely that a rational “juror could have concluded, based on the
record presented at trial, that the State failed to prove that element
in this case.” Burley, 316 Ga. at 807 (citation and punctuation
omitted) (concluding that, for such reason, the trial court’s clear and
obvious error in failing to instruct the jury accurately on the
essential elements of felony murder and aggravated assault likely
did not affect the trial’s outcome). Uncontradicted evidence at trial
established that Morris proximately caused Carr’s death by shooting
him while Morris, Carr, O’Neal, Jacobs, and Colvin attempted to rob
4 Criminal Pattern Jury Instructions, Vol. II § 2.10.20 (4th ed. 2007,
updated July 2024) provides:
You may find the defendant guilty of felony murder if you believe
that he caused the death of another person by committing the
felonies of criminal attempt to commit armed robbery, conspiracy
to commit armed robbery, and aggravated assault with intent to
rob, regardless of whether he intended the death to occur. There
must be some causal connection between the felony and the death.
Felony murder is not established simply because the death
occurred at the same time or shortly after the felony was
attempted or committed. The felony must have directly caused the
death or played a substantial part in causing the death regardless
of when the death ultimately occurred.
21
the Patels at gunpoint. The evidence also established—and
Holloway concedes on appeal—that “Holloway’s role was to alert
O’Neal, Morris, Jacobs,” and Colvin “regarding the impending
arrival of the Patels on the roadway.” Other evidence at trial
showed that Holloway conspired to commit the armed robbery with
O’Neal, Morris, Colvin, Jacobs, and Carr and was a party to the
crimes underlying the felony murder count: Holloway invited at
least some of his co-defendants to rob the Patels; Holloway
introduced the idea of robbing the Patels to his co-defendants
because he surmised they would have a large amount of cash in their
possession due to their check-cashing business; he supplied firearms
for Morris and Colvin to carry during the attempted armed robbery;
and Holloway and Jacobs shared at least three phone calls in the 12-minute period surrounding the attempted robbery. Based on this
evidence, it is unlikely that a rational juror could have concluded,
based on the record presented at trial, that the State failed to prove
the proximate-cause element of felony murder. Burley, 316 Ga. at
805, 806-807 (concluding that clear and obvious error in failing to
22
instruct the jury on intent to kill—an essential element of
aggravated assault with “intent to murder”—was not plain error
because the appellant did not show that the trial court’s failure to
instruct on that element affected the outcome of the trial, explaining
that “no rational juror could have concluded, based on the record
presented at trial, that the State had failed to prove that element in
the case” because “overwhelming circumstantial evidence [was]
adduced” that the defendant intended to kill the victim).
Moreover, in accordance with the evidence showing that
Holloway served as a lookout for the attempted armed robbery but
was not at the scene, the trial court instructed the jury that “each
person is responsible for the acts of others only insofar as such acts
are naturally and necessarily done to further the conspiracy[;]” “[a]
person is a party to a crime only if that person . . . intentionally helps
in the commission of the crime, or intentionally advises, encourages,
hires, counsels, or procures another to commit the crime[;]” and
“[e]very [p]arty to a crime may be charged with and convicted of
commission of the crime.” When viewing the instructions as a whole,
23
any prejudice stemming from the trial court’s failure to instruct the
jury on proximate cause was minimized by these instructions. Under
these circumstances, we cannot say that the trial court’s failure to
instruct the jury on proximate cause affected the outcome of
Holloway’s trial. See Priester v. State, 316 Ga. 133, 139-140 (3) (886
SE2d 805) (2023) (concluding, “based on the trial court’s instructions
as a whole and the strong evidence of Appellant’s guilt,” the
challenged instruction did not “likely affect[ ] the outcome of the
trial,” and the trial court therefore did not plainly err); Jones v.
State, 302 Ga. 892, 897-898 (3) (810 SE2d 140) (2018) (concluding
that any error in the jury instructions was harmless, based on the
trial court’s instructions as a whole and the very strong evidence of
appellant’s guilt).
5. Holloway next contends that the trial court plainly erred in
failing to instruct the jury on impeachment of a witness by prior
conviction. We disagree.
At trial, Morris, O’Neal, Colvin, and Jacobs testified that their
plea agreements were conditioned on their truthful testimony at
24
trial. Additionally, Holloway’s trial counsel cross-examined O’Neal,
Morris, Colvin, and Jacobs on inconsistencies in prior statements
they made to the police. Accordingly, the trial court instructed the
jury that
[i]n assessing the credibility of a witness, you may
consider any possible motive in testifying if shown. In
that regard, you are authorized to consider any possible
pending prosecutions, negotiated pleas, grants of
immunity or leniency, or similar matters.
However, Holloway contends that the trial court failed to instruct
the jury on the principle of impeachment of a witness by prior
conviction, arguing that O’Neal, Jacobs, Colvin, and Morris avoided
life sentences due to plea agreements conditioned on their testimony
for the State. See OCGA § 24-6-609 (providing for the admission of
“[e]vidence that a witness other than an accused has been convicted
of a crime” subject to certain limitations “[f]or the purpose of
attacking the character for truthfulness of a witness”).
As an initial matter, Holloway concedes that we should review
this claim for plain error because he did not request the instruction
at trial. See, e.g., Wilkerson v. State, 317 Ga. 242, 246-247 (892 SE2d
25
737) (2023) (explaining that “we review [an appellant’s] claim for
plain error only” where “the trial court did not charge on voluntary
manslaughter, and Appellant did not object to the court’s failure to
do so”).
Assuming (without deciding) that the trial court clearly and
obviously erred in failing to instruct the jury on impeachment of a
witness by prior conviction, Holloway has not shown that the
omission of the instruction affected the trial’s outcome. See Williams
v. State, 308 Ga. 228, 232-233 (2) (838 SE2d 764) (2020) (“[W]hen an
appellant fails to carry his burden of showing that such an erroneous
instruction actually affected his substantial rights or likely affected
the outcome of the trial, the error does not constitute plain error.”).
Here, Holloway’s trial counsel cross-examined O’Neal, Morris,
Colvin, and Jacobs on inconsistencies in prior statements they made
to the police. And the instructions as a whole show that the trial
court did instruct the jury that it could evaluate the credibility of
Morris, O’Neal, Jacobs, and Colvin in the light of the fact that they
were testifying in exchange for plea agreements, charging the jury
26
that it “may consider any possible motive” of a witness for testifying,
including negotiated pleas or similar matters. Under these
circumstances, it is unlikely that the trial court’s failure to instruct
on impeachment of a witness by prior conviction affected the
outcome of Holloway’s trial and therefore his substantial rights. Cf.
Clark v. State, 309 Ga. 566, 571-572 (847 SE2d 160) (2020)
(concluding that trial counsel’s failure to request a jury instruction
on impeachment by prior conviction likely did not affect the outcome
of the trial, where witness for the State was cross-examined about
his role in murdering victim and his conviction for the same, and the
trial court instructed the jury that “‘[i]n assessing the credibility of
a witness, you may consider any possible motive in testifying, if
shown” and is “authorized to consider any possible pending
prosecutions, negotiated pleas, grants of immunity or leniency, or
similar matters”); Green v. State, 304 Ga. 385, 392-393 (2) (b) (818
SE2d 535) (2018) (holding that the appellant was not prejudiced by
trial counsel’s failure to request an instruction on impeachment by
felony conviction where defense counsel cross-examined witness on
27
inconsistencies in his testimony and the trial court “instructed the
jury on impeachment generally[;] . . . impeachment specifically by
disproving the facts to which the witness testified or proof of prior
contradictory statements”; and that, “in determining the
believability of witnesses, it ‘may also consider (the witness’s)
personal credibility insofar as it may have been shown in your
presence and by the evidence”). This plain-error claim therefore
fails. 5
6. Lastly, Holloway contends that the trial court abused its
discretion in denying his motion to exclude evidence of other
criminal acts. For the reasons explained below, this claim fails.
At trial, Holloway moved to exclude evidence of other criminal
acts under OCGA §§ 24-4-403 (“Rule 403”) and 24-4-404 (“Rule 404”)
based on the State’s opening statement, in which the State stated
that Holloway, Morris, Carr, and Colvin drove to Alabama on the
5 Holloway also contends that the trial court plainly erred in failing to
instruct the jury using Suggested Pattern Jury Instructions, Vol. II: Criminal
Cases § 1.42.11 (4th ed. 2007, updated July 2024) (“principal, failure to
prosecute other involved persons”), but the record shows that this exact
instruction was given. This claim therefore lacks merit.
28
day of the attempted armed robbery looking for other robberies to
commit. The State opposed Holloway’s motion, arguing that the
evidence was intrinsic to the charged crimes. The trial court denied
Holloway’s motion, concluding that the evidence was “intrinsic
evidence that [went] to the totality of what [was] taking place that
day. It [went] to define why the group was together, [and] what they
were doing together.” However, the trial court did not expressly
conclude that the evidence was admissible under Rule 403.
Rule 404 (b) generally prohibits the admission of evidence of
the defendant’s “other crimes, wrongs, or acts” to prove the
defendant’s character, but it allows such “other acts” evidence for
certain limited purposes. See OCGA § 24-4-404 (b). We have said,
however, that Rule 404 (b) applies only to other acts that are
extrinsic to the charged crime, and that other acts that are intrinsic
to the charged crime may be admissible without respect to Rule 404
(b). See, e.g., Harris v. State, 314 Ga. 238, 264 (3) (a) (875 SE2d 659)
(2022). And Rule 403 provides that “[r]elevant evidence may be
excluded if its probative value is substantially outweighed by the
29
danger of unfair prejudice, confusion of the issues, or misleading the
jury or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” OCGA § 24-4-403.
Starting with Holloway’s contention about Rule 404 (b), the
trial court determined that the evidence of the group’s trip to
Alabama was intrinsic to the charged crimes, and we conclude that
determination was not an abuse of discretion. “Intrinsic evidence is
evidence that arises from the same transaction or series of
transactions as the charged offense, is necessary to complete the
story of the crime, or is inextricably intertwined with the evidence
regarding the charged offense.” Harris v. State, 314 Ga. 238, 264 (3)
(a) (875 SE2d 659) (2022) (citation and punctuation omitted). In
applying these factors, this Court has stated that
evidence pertaining to the chain of events explaining the
context, motive, and set-up of the crime is properly
admitted if it is linked in time and circumstances with the
charged crime, or forms an integral and natural part of an
account of the crime, or is necessary to complete the story
of the crime for the jury.
Middlebrooks v. State, 310 Ga. 748, 750 (2) (a) (854 SE2d 503)
30
(2021). Additionally, “intrinsic evidence must satisfy Rule 403.”
Harris, 314 Ga. at 264 (3) (a) (citation and punctuation omitted).
Here, the evidence that Holloway, Morris, Carr, and Colvin
went to Alabama to commit another robbery the same day as the
charged attempted robbery “plainly pertained to the chain of events
in the case and was linked in time and circumstances with the
charged crimes, making the information necessary to complete the
story for the jury.” Id. To begin, the trip showed that the primary
purpose of Holloway’s gathering the group in LaGrange was to
commit robberies. Moreover, the trip occurred close in time with the
attempted armed robbery because they were in Alabama
approximately an hour and a half before the attempted armed
robbery. And the trip occurred between Holloway’s meeting in the
park with Carr, Colvin, Morris, Jacobs, and O’Neal—where they
planned to rob the Patels and where Holloway gave Morris and
Colvin guns—and their procession to the site of the attempted
armed robbery. This evidence helped the jury understand the
sequence of events that occurred immediately before and built up to
31
the attempted robbery and thus completed the story of the charged
crimes. See, e.g., Anderson v. State, 313 Ga. 178, 182 (2) (869 SE2d
401) (2022) (explaining that the trial court did not abuse its
discretion in determining that evidence of a burglary the defendant
committed “roughly an hour” before the charged burglary “was a
link in the chain of events leading up to the murder and completed
the story of the crimes for the jury[]”); Brown v. State, 307 Ga. 24,
29 (2) (834 SE2d 40) (2019) (concluding that evidence the appellant
committed a burglary in the same week as the charged crimes was
intrinsic to the charged crimes because it was one of many in a
“crime spree” and provided “a link in the chain of events leading up
to the murder and completed the story of the crimes for the jury”).
Additionally, the trial court did not abuse its discretion in
implicitly concluding that the evidence was admissible under Rule
403. The evidence was highly probative of the timeline of events
leading up to the robbery and showed that the primary purpose of
the group’s gathering in LaGrange was to commit robberies.
Moreover, although this evidence may have incidentally placed
32
Holloway’s character in issue, any prejudicial effect did not
substantially outweigh the probative value because there was no
evidence that Holloway committed any crimes on the trip to
Alabama. Accordingly, we cannot say that the trial court abused its
discretion in denying Holloway’s motion to exclude evidence of other
criminal acts.6
Judgment affirmed. All the Justices concur.
6 We have assumed two trial-court errors in failing to give jury
instructions on the proximate-cause element of felony murder and
impeachment of a witness by prior conviction. Holloway has not contended that
we should conduct a cumulative-error review. We conclude that any such
cumulative error does not demand a new trial. See Haufler v. State, 315 Ga.
712, 722 (2) n.14 (884 SE2d 310) (2023) (conducting a cumulative-error review
even though the appellant did not request that the Court do so and concluding
that the appellant “has failed to establish that the combined prejudicial effect
of these errors requires a new trial”) (citation and punctuation omitted).
33