☢ test - Í

Walker v. State, 293 Ga. 709, 749 S.E.2d 663 (October 7, 2013). Convictions for felony murder/aggravated assault (“a criminal intent crime”) and vehicular homicide/reckless driving (“a criminal negligence crime”) reversed as mutually exclusive. Although prosecutor cautioned the jury in argument that it must choose whether defendant’s act of (repeatedly) running over the victim was intentional or merely negligent, the trial court failed to instruct the jury that it couldn’t convict on both. “Even after the jury initially returned its mutually exclusive verdicts, the trial court might have cured the problem by advising the jury of the Jackson [ v. State, 276 Ga. 408, 577 S.E.2d 570 (2003)] rule and sending the jury back for further deliberations and return of a proper verdict. See Dumas v. State, 266 Ga. 797, 800, 471 S.E.2d 508 (1996).” “We note that the pattern jury instructions for criminal cases do not address the potential for mutually exclusive verdicts in situations where the indictment charges both criminal intent and criminal negligence crimes. A pattern instruction alerting judges and parties to this issue and how to address it would be valuable.” Overruled, Springer (June 29, 2015), above. Holcomb v. State, 310 Ga.App. 853, 714 S.E.2d 407 (July 13, 2011). Convictions for involuntary manslaughter (as lesser included offense to murder) and aggravated assault reversed as possibly mutually exclusive. “With regard to involuntary manslaughter as a lesser-included offense to malice murder and felony murder, the trial court instructed the jury in two ways: first, that the jury could determine that Holcomb had committed involuntary manslaughter by intentionally pointing a firearm at Knowles; and second, that the jury could determine that Holcomb had committed involuntary manslaughter by consciously disregarding a substantial and justifiable risk that his act or omission would cause the death of another. Because ‘we cannot conclusively state that the verdict rested exclusively’ on either criminal negligence or criminal intent ‘so as to eliminate the reasonable probability that the jury might have returned a mutually exclusive verdict by finding [Holcomb] acted with both criminal intent and criminal negligence at the same time as to the same victim,’ (Emphasis supplied.) Id. at 413, n. 5. See also Dryden v. State, 285 Ga. 281, 284 (676 S.E.2d 175) (2009); Dunagan v. State, 269 Ga. 590, 591–592(2) (502 S.E.2d 726) (1998), distinguished by, Parker v. State, 270 Ga. 256(4) (507 S.E.2d 744) (1998), it is necessary to reverse Holcomb's convictions and remand for a new trial.” Overruled, Springer (June 29, 2015), above. Drake v. State, 288 Ga. 131, 702 S.E.2d 161 (November 1, 2010). Conviction for felony murder affirmed; verdict was not inconsistent with finding of guilt on involuntary manslaughter based on misdemeanor, as lesser-included offense of malice murder. Verdict didn’t disclose which of three misdemeanors involuntary manslaughter was based on – not inconsistent if based on battery or cruelty to children, but would have been inconsistent if based on reckless conduct. “Qualified jurors under oath are presumed to follow the instructions of the trial court. Lewis v. State, 287 Ga. 210, 213(4) (695 S.E.2d 224) (2010). We will not presume, as appellant would have us do, that the jury ignored the trial court's instructions and rendered a logically inconsistent verdict by finding, as to the exact same event involving the same victim at the same instant, that appellant acted with criminal negligence so as to find him guilty of involuntary manslaughter but with criminal intent so as to find him guilty of felony murder. Compare Flores v. State, [277 Ga. 780, 782(3) (596 S.E.2d 114) (2004)] (verdict returned by jury clearly demonstrated its logical inconsistency with findings of guilt as to both felony murder based on aggravated assault and involuntary manslaughter based on reckless conduct); Jackson v. State, [276 Ga. 408, 410(2) (577 S.E.2d 570) (2003)] (same). Rather, looking to OCGA § 17-9-2 (‘[v]erdicts are to have a reasonable intendment, are to receive a reasonable constructions, and are not to be avoided unless from necessity’), we conclude that the only reasonable construction of the verdict returned by the jury here is that, consistent with its guilty verdict on the felony murder charge based on cruelty to children, an offense requiring criminal intent, it likewise predicated its involuntary manslaughter verdict on a misdemeanor involving criminal intent, i.e., battery or simple battery. The trial court did not err by refusing to find that the jury returned a mutually exclusive verdict.” Verdict must necessarily be inconsistent, citing Flores . Flores and Jackson overruled by Springer (June 29, 2015), above. Distinguished, Owens (November 17, 2014), above. Sanchez v. State, 285 Ga. 749, 684 S.E.2d 251 (September 28, 2009). Guilty verdicts for felony murder and aggravated assault as to one victim were not mutually exclusive with conviction for reckless conduct as to second victim: defendant struck both victims with his truck, then ran over first victim two more times, killing him. Dryden v. State, 285 Ga. 281, 676 S.E.2d 175 (April 28, 2009). Defendant’s conviction for aggravated assault under OCGA § 16-5-20(a)(1) was mutually exclusive of conviction for serious injury by vehicle based upon reckless driving. Based on Jackson (February 24, 2003), below; reversing 292 Ga.App. 467 (665 S.E.2d 341) (2008) . Indictment here does not specify whether the aggravated assault charge was brought under (a)(1) or (a)(2), a critical distinction for purposes of this analysis. “‘[A] verdict of guilty as to aggravated assault based on OCGA § 16-5-20(a)(1) requires a finding of an intentional infliction of injury, which precludes the element of criminal negligence in reckless conduct. [Cits.]’