¶1In the Supreme Court of Georgia
¶2 Decided: December 14, 2021
¶3 S21G0485. GRULLON v. THE STATE
¶4 LAGRUA, Justice.
¶5 In September 2017, a jury found Victor Grullon guilty of
¶6trafficking heroin, and the trial court sentenced him to serve 30
¶7years in prison. Grullon appealed, challenging the sufficiency of the
¶8evidence and arguing that the trial court gave an erroneous jury
¶9charge on deliberate ignorance. The Court of Appeals affirmed
¶10Grullon’s conviction, concluding that the evidence was
¶11constitutionally sufficient under Jackson v. Virginia, 443 U. S. 307
¶12(99 SCt 2781, 61 LE2d 560) (1979), and that Grullon did not show
¶13“reversible error because he affirmatively stated to the trial court
¶14that he had no objection after the jury was charged.” Grullon v.
¶15State, 357 Ga. App. 695, 695 (849 SE2d 291) (2020). We granted
¶16certiorari to decide whether the Court of Appeals correctly held that Grullon affirmatively waived his claim that the trial court gave an
¶17erroneous jury instruction on deliberate ignorance. Because we
¶18answer this question in the negative, we reverse that portion of the
¶19judgment of the Court of Appeals.
¶20 1. Pertinent Facts and Procedural History
¶21 (a) Factual Background
¶22 The underlying facts, as summarized by the Court of Appeals,
¶23see Grullon, 357 Ga. App. at 696-697 (1), show that in early 2016,
¶24the federal Drug Enforcement Administration, together with
¶25various local law enforcement agencies, conducted an investigation
¶26into Marcelo Enciso-Rodriguez. Law enforcement officers believed
¶27Enciso-Rodriguez was acting as a middleman in a heroin trafficking
¶28operation that involved a supplier in Mexico, known as “Mariachi,”
¶29and buyers from New York and Philadelphia. The buyers would
¶30drive to the metro Atlanta area and meet Enciso-Rodriguez at a
¶31QuikTrip convenience store, where he would give them a car battery
¶32in which heroin was concealed. As part of their investigation,
¶33officers conducted surveillance on Enciso-Rodriguez through
¶34 2 telephone wiretaps, a video camera mounted on a pole in the
¶35QuikTrip parking lot, and a stake-out across the street from the
¶36QuikTrip.
¶37 In January 2016, officers observed a transaction between
¶38Enciso-Rodriguez and a man later determined to be Tomas
¶39Hernandez, in which Enciso-Rodriguez gave Hernandez a car
¶40battery. Before and after the meeting with Hernandez, Enciso-
¶41Rodriguez spoke with Mariachi, using coded phrases referring to
¶42Hernandez and to the amount of money involved in the transaction.
¶43 On February 5, 2016, Mariachi and Enciso-Rodriguez spoke on
¶44the phone about another transaction. Apparently referring to a new
¶45buyer, Mariachi told Enciso-Rodriguez that “he left today” and
¶46would arrive to meet with Enciso-Rodriguez at some point the
¶47following day, possibly in the morning.
¶48 On the morning of February 6, Enciso-Rodriguez had a series
¶49of telephone conversations with a man, later identified as Grullon,
¶50who asked for directions to the QuikTrip. Grullon and Hernandez,
¶51the buyer from the January transaction, arrived at the QuikTrip in
¶52 3 a vehicle with New York plates registered to Grullon. Enciso-
¶53Rodriguez gave Hernandez a car battery, which Hernandez placed
¶54in the vehicle, and Hernandez and Grullon drove away. Officers
¶55followed the vehicle and stopped it shortly thereafter for a tag
¶56violation. When officers stopped the vehicle, Hernandez was
¶57driving, and Grullon was seated in the front passenger seat.
¶58Hernandez consented to a search of the vehicle. He told the officers
¶59that he and Grullon had been in Atlanta for two days visiting a
¶60friend and that the battery in the back of the vehicle belonged to
¶61him. When the officers began asking questions about the car battery,
¶62Grullon appeared as though he might “pass out.” The officers cut
¶63apart the battery and found six bricks of a substance inside, which
¶64were later tested and found to be a mixture containing heroin,
¶65weighing 465 grams.
¶66 (b) Trial court proceedings
¶67 In January 2017, Grullon was indicted by a Gwinnett County
¶68grand jury, together with Encisco-Rodriguez and Hernandez, 1 on
¶69 1 Encisco-Rodriguez and Hernandez were also indicted for one count of 4 one count of trafficking in morphine, opium, or heroin under OCGA
¶70§ 16-13-31 (b). 2 Grullon’s case proceeded to trial in September 2017.
¶71During the charge conference, the State requested that the trial
¶72court give the following jury instruction on deliberate ignorance, 3
¶73citing Perez-Castillo v. State, 257 Ga. App. 633, 635 (572 SE2d 657)
¶74(2002):
¶75 The element of knowledge, intent, may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant’s knowledge of a fact may be inferred from willful blindness to the existence of the fact. Again, whether or not you draw such an inference is a matter
¶76conspiracy to commit trafficking heroin. 2 Under OCGA § 16-13-31 (b), a “person who sells, manufactures,
¶77delivers, brings into this state, or has possession of four grams or more of any [of a list of specified] substance[s], . . . including heroin, . . . or four grams or more of any mixture containing any such substance . . . commits the felony offense of trafficking in illegal drugs[.]” 3 The State had previously informed the trial court during a hearing on
¶78Grullon’s motion for directed verdict that it would be asking for a jury instruction on deliberate ignorance. The State argued that such a charge was appropriate in this case because, even if Grullon was not “fully apprised of what [wa]s in that battery,” he at least knew something was “amiss.” Grullon objected, contending that, for this charge to be proper, the State would have been required to “show that there were signs that [Grullon] should have known” what was in the battery, but the State failed to make this showing or otherwise show “a sufficient factual basis” for this charge. 5 solely within your discretion.
¶79Grullon objected to the State’s requested charge, asserting that this
¶80charge should not be given in circumstances where the evidence
¶81“points to either actual knowledge or no knowledge on the part of
¶82the defendant,” and the State had argued that Grullon had a basis
¶83for actual knowledge in this case. The trial court overruled Grullon’s
¶84objection and gave the State’s requested charge on deliberate
¶85ignorance.
¶86 When the trial court completed the final instructions to the
¶87jury, the trial court asked the parties whether there were any
¶88exceptions, and Grullon’s trial counsel replied, “No, sir, Judge.”
¶89Grullon was convicted by the jury of trafficking in 28 or more grams
¶90of a mixture containing heroin under OCGA § 16-13-31 (b) (3) and
¶91sentenced to 30 years in prison.
¶92 Grullon subsequently filed a motion for new trial, asserting
¶93that there was insufficient evidence for the jury to find he was in
¶94constructive possession of the drugs and that the trial court gave an
¶95erroneous jury charge on the issue of deliberate ignorance. With
¶96 6 respect to the jury charge, Grullon argued that the trial court erred
¶97in giving this instruction because it unconstitutionally reduced the
¶98State’s burden of proof by conflating the “knowledge” and “intent”
¶99elements of the offense – a different argument than the one he raised
¶100when he objected to the instruction at the charge conference. The
¶101trial court denied Grullon’s motion for new trial, and Grullon
¶102appealed his conviction to the Court of Appeals.
¶103 (c) Grullon’s appeal to the Court of Appeals
¶104 On appeal, Grullon challenged the sufficiency of the evidence
¶105and asserted that the trial court erred in giving the deliberate
¶106ignorance charge “because the charge equated intent with
¶107knowledge.” Grullon, 357 Ga. App. at 700 (2). The State conceded
¶108on appeal that this charge was erroneous, but argued that the error
¶109was harmless. See id. See also Matos-Bautista v. State, 353 Ga.
¶110App. 773, 778 (1) (839 SE2d 260) (2020) (“[A] charge on deliberate
¶111ignorance that equates intent with knowledge, or which tends to
¶112confuse those concepts, is erroneous.”). Without addressing whether
¶113the trial court committed an obvious error in giving this charge or if
¶114 7 any error was harmful, the Court of Appeals concluded that
¶115 Grullon did not preserve this claim of error for regular appellate review. Although he objected to the charge at the charge conference (albeit on different grounds), Grullon did not object to the charge at the time it was given. For that reason, his claim that the trial court erred by giving the charge is subject to review only for plain error.
¶116 And Grullon cannot show plain error, which among other things requires a showing that the error has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (citation omitted). After giving the charge to the jury, the trial court asked if Grullon had any objection to it, and his trial counsel responded “no.” By affirmatively stating that he had no objection to the charge to the jury, Grullon waived any claim that the charge was improper, meaning that he cannot show plain error. See Lee v. State, 347 Ga. App. 508, 512 (2) (b) (820 SE2d 147) (2018).
¶117Grullon, 357 Ga. App. at 700 (2) (punctuation omitted). The Court
¶118of Appeals accordingly affirmed the trial court. See id.
¶119 For the reasons that follow, we conclude that the Court of
¶120Appeals erred in identifying affirmative waiver under the facts of
¶121this case, and, thus, we reverse this division of the Court of Appeals’
¶122decision and remand the case for reconsideration of other elements
¶123 8 of plain error review. 4
¶124 2. Analysis
¶125 (a) Grullon did not affirmatively waive his claim that the trial court erred in giving an erroneous jury instruction.
¶126 Under OCGA § 17-8-58,
¶127 (a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury’s hearing and presence.
¶128 (b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.
¶129 In accordance with subsection (a), a party who objects to any of
¶130the charges given to the jury is obligated to raise that objection
¶131before the jury retires to deliberate. See OCGA § 17-8-58 (a). See
¶132 4Grullon did not seek certiorari review of the Court of Appeals’ holding that the evidence was sufficient, see Grullon, 357 Ga. App. at 696-700 (1), and that part of the Court of Appeals’ judgment stands. 9 also Cheddersingh v. State, 290 Ga. 680, 682 (2) (724 SE2d 366)
¶133(2012) (holding that it was the appellant’s “duty to inform the court
¶134of the specific objection and the grounds for such objection before the
¶135jury retired to deliberate” (punctuation omitted)). Here, Grullon did
¶136not reiterate his objection to the deliberate ignorance charge after
¶137the trial court gave the final instructions to the jury in accordance
¶138with OCGA § 17-8-58 (a); additionally, the ground for his objection
¶139at trial was different than the ground he asserted on appeal. See
¶140Nalls v. State, 304 Ga. 168, 172 (2) (a) (815 SE2d 38) (2018) (noting
¶141that at the charge conference, the appellant’s counsel stated that she
¶142did not want a certain charge to be given, but “she did not object to
¶143the charge at the time that it was given[;] [f]or that reason,
¶144[Appellant’s] claim that the trial court erred by failing to limit the
¶145charge is subject to review only for plain error.”). Grullon therefore
¶146failed to preserve this claim for ordinary appellate review. However,
¶147the alleged error is still reviewed for plain error on appeal. See
¶148OCGA § 17-8-58 (b). See also Cheddersingh, 290 Ga. at 683 (2).
¶149“[U]nder OCGA § 17-8-58 (b), appellate review for plain error is
¶150 10 required whenever an appealing party properly asserts an error in
¶151jury instructions.” Kelly, 290 Ga. at 32-33 (1)-(2) (a). In other words,
¶152when an error in the jury instruction is enumerated and argued on
¶153appeal, the appellate court is required to conduct a plain error
¶154analysis. See id. at 32-33 (2) (a). See also King v. State, 300 Ga. 180,
¶155182 (1) (794 SE2d 110) (2016) (holding that when the appellant
¶156raises trial court instructional error for the first time on appeal, the
¶157purported “failure to give these charges is reviewed for plain error”).
¶158 For purposes of undertaking the plain error analysis, this
¶159Court established the following test for determining whether there
¶160is plain error in jury instructions under OCGA § 17-8-58 (b):
¶161 First, there must be an error or defect – some sort of deviation from a legal rule – that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error – discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial
¶162 11 proceedings.
¶163Kelly, 290 Ga. at 33 (2) (a) (citation and punctuation omitted;
¶164emphasis in original).
¶165 In this case, the Court of Appeals did not consider any other
¶166elements of the plain error test delineated in Kelly because the court
¶167concluded that the first requirement was not met: Grullon had
¶168“waived any claim that the charge was improper” by “affirmatively
¶169stating that he had no objection to the charge” after it was given to
¶170the jury. Grullon, 357 Ga. App. at 700 (2). On certiorari review,
¶171Grullon contends and the State concedes that the Court of Appeals
¶172erred in making this ruling. We agree.
¶173 The parties do not dispute that the trial court’s jury instruction
¶174on deliberate ignorance was clearly erroneous. And, although
¶175Grullon stated no objection to the charge after it was given – thereby
¶176forfeiting ordinary appellate review – this does not necessarily
¶177establish “affirmative waiver” of the error on appeal. See
¶178Cheddersingh, 290 Ga. at 684 (2). To constitute an affirmative
¶179waiver, the appellant’s argument that the trial court “deviat[ed]
¶180 12 from a legal rule must have been intentionally relinquished or
¶181abandoned” by the appellant. Id. (punctuation omitted).
¶182 Under the plain error analysis articulated in Kelly, an objection is intentionally relinquished or abandoned if it is “affirmatively waived.” Applying the standard articulated in United States v. Olano, 507 U. S. 725 (113 SCt 1770, 123 LE2d 508) (1993), we have contrasted such a waiver – the intentional relinquishment of a known right – with “forfeiture,” which is the mere “failure to make the timely assertion of the right.” An affirmative waiver may occur, for example, when a defendant requests a specific jury instruction but later withdraws such request; explicitly requests a jury instruction that he later argues on appeal should not have been given; or objects to a charge that he later argues on appeal should have been given. In such circumstances, the defendant has invited the alleged error, and it therefore provides no basis for reversal.
¶183Vasquez v. State, 306 Ga. 216, 229 (2) (c) (830 SE2d 143) (2019)
¶184(citations and punctuation omitted).
¶185 Grullon objected to the deliberate ignorance charge at two
¶186points during trial before the trial court charged the jury. And,
¶187while he did not object again after the final instructions were given,
¶188that “does not show that [Grullon] intentionally relinquished” his
¶189known rights with regard to the deliberate ignorance instruction.
¶190 13 Cheddersingh, 290 Ga. at 684 (2) (holding that “the failure to object
¶191is more appropriately described as a forfeiture of the right”).
¶192“Generally, counsel’s silence at a juncture when a request for – or
¶193objection to – a jury instruction might have been made will be
¶194considered merely a forfeiture for which plain error review remains
¶195available.” Vasquez, 306 Ga. at 229 (2) (c). While Grullon’s counsel
¶196did not remain silent, there was also no specific waiver of any
¶197objections to the deliberate ignorance instruction in particular. See,
¶198e.g., Collins v. State, 308 Ga. 515, 519 (2) (842 SE2d 275) (2020)
¶199(reviewing claim for plain error, but not relying on affirmative
¶200waiver, where “[a]t the conclusion of the jury charge, the trial court
¶201asked, ‘Are there any objections to the charge . . . on behalf of the
¶202defense?’ Appellant’s counsel replied, ‘No, your honor’”); Guajardo v.
¶203State, 290 Ga. 172, 175-176 (3) (718 SE2d 292) (2011) (reviewing
¶204claim for plain error, but not relying on affirmative waiver, where
¶205“after the trial court recharged the jury, the trial court specifically
¶206asked counsel if there were ‘any exceptions to the Court’s answer to
¶207the questions.’ Appellants’ trial counsel answered, ‘No, Your
¶208 14 Honor’”); Mike v. State, 358 Ga. App. 113, 114 (1) (853 SE2d 887)
¶209(2021) (reviewing claim for plain error, but not relying on
¶210affirmative waiver, where, “[f]ollowing the trial court’s instructions
¶211to the jury, defense counsel stated she had no objections to the
¶212charge”).
¶213 Moreover, we discern no tactical reason for Grullon’s trial
¶214counsel not to object to the deliberate ignorance charge after it was
¶215given in the final instructions to the jury, particularly because he
¶216had previously objected to the instruction during trial and been
¶217informed by the trial court that the charge would be given. See
¶218Vasquez, 306 Ga. at 230 (2) (c) (“[T]he appellate court can conclude
¶219that the defendant’s right – or objection – to a particular instruction
¶220was intentionally relinquished if the appellate court can discern a
¶221tactical reason on the part of the defense for failing to request (or
¶222object to, as the case may be) a specific jury instruction.” (Citation
¶223and punctuation omitted)).
¶224 Additionally, while the Court of Appeals relied on Lee in
¶225concluding that Grullon waived any claim that the deliberate
¶226 15 ignorance charge was improper in this case, Lee is distinguishable.
¶227See Lee, 347 Ga. App. at 512 (2) (b). In Lee, the Court of Appeals
¶228concluded that the defendant “waived any claim that the trial court
¶229improperly referenced [a] stipulation in its jury charge” because the
¶230defendant had previously stipulated that he did not challenge the
¶231chain of custody with respect to certain evidence presented by the
¶232State and “affirmatively stated that he had no objection to a
¶233stipulation charge as to the chain of custody.” Id. Here, Grullon
¶234never affirmatively stated that he had no objection to the specific
¶235deliberate ignorance charge he now challenges, and indeed he raised
¶236an objection to that charge earlier at trial.
¶237 Because Grullon’s claim of error was not affirmatively waived
¶238and survives the first step of plain error review, the Court of Appeals
¶239must now consider other parts of the plain error analysis, in
¶240particular whether the error that the State has conceded probably
¶241affected the outcome of the proceedings. See Kelly, 290 Ga. at 33 (2)
¶242(a) (holding that “the error must have affected the appellant’s
¶243substantial rights, which in the ordinary case means he must
¶244 16 demonstrate that it affected the outcome of the trial court
¶245proceedings”). Accordingly, we reverse the portion of the judgment
¶246of the Court of Appeals concluding that there was affirmative waiver
¶247and remand the case for the court to consider other elements of plain
¶248error review. See id.
¶249 Judgment reversed in part and case remanded. All the Justices concur.
¶250 17