¶1 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.
¶2In the Supreme Court of Georgia
¶3 Decided: February 21, 2023
¶4 S22A1080. CHARLES v. THE STATE.
¶5 COLVIN, Justice.
¶6 Fred Jason Charles appeals his convictions for malice murder
¶7and related offenses in connection with the July 2015 shooting death
¶8of Stephanie Daniel. 1 Charles argues that (1) the trial evidence was
¶9 1 Daniel died on July 5 or 6, 2015. In March 2016, a Gordon County grand jury returned a 23-count indictment against Charles and co-defendant Christopher Reid Scoggins. Charles was charged with malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), felony murder predicated on possession of a firearm by a convicted felon (Count 3), aggravated assault (Count 5), two counts of possession of a firearm by a convicted felon (Counts 6 and 7), theft by taking (Count 10), conspiracy to commit arson in the second degree (Count 11), and possession of a firearm during commission of a felony (Counts 12 through 17). Co-defendant Scoggins was jointly charged in Counts 1, 2, 5, 10, and 11 and separately charged with felony murder predicated on possession of a firearm by a convicted felon (Count 4), possession of a firearm by a convicted felon (Counts 8 and 9), and possession of a firearm during commission of a felony (Counts 18 through 23). Before trial, Charles joined a motion filed by Scoggins to bifurcate trial on the counts premised on the defendants’ felon status, including the charges of felony murder and possession of a firearm by a convicted felon. After hearing arguments from the parties, the court denied the motion. At a September 2016 trial, the jury found Charles and Scoggins guilty constitutionally insufficient to support his convictions, (2) the trial
¶10court failed to appropriately question jurors regarding a potential
¶11issue of juror irregularity, (3) the trial court erred in denying his
¶12pretrial motion to bifurcate the trial and try separately the charges
¶13for which his status as a felon was material, and (4) trial counsel
¶14was ineffective for failing to object to the State using a felon-in-
¶15possession-of-a-firearm charge as a predicate for felony murder. For
¶16the reasons explained below, we affirm.
¶17 1. Viewed in the light most favorable to the jury verdicts, the
¶18trial evidence showed the following. On July 5, 2015, Charles was
¶19living with his father, Herbert Charles (“Herbert”), at Herbert’s
¶20mobile home in Calhoun, Georgia. Daniel, who was Charles’s
¶21on all counts. On October 6, 2016, the court sentenced Charles as a recidivist under OCGA § 17-10-7 (a) and (c) to life in prison without the possibility of parole for Count 1, five years concurrent to Count 1 for Count 6, ten years consecutive to Count 1 for Count 10, five years consecutive to Count 10 for Count 11, five years consecutive to Count 11 for Count 12, and five years concurrent to Count 12 for Count 16. The court merged for sentencing purposes or vacated by operation of law the remaining counts. Charles filed a motion for new trial on October 28, 2016, which he amended through new counsel on October 3, 2018, and January 28, 2022. On February 3, 2022, following a hearing, the court denied the motion for new trial as amended. Charles timely appealed. The case was docketed to our August 2022 term and submitted for a decision on the briefs. 2 girlfriend, had been staying in Charles’s portion of the mobile home
¶22for several days, and Charles’s friend, Scoggins, was at the mobile
¶23home early in the day. Around noon, Charles and Scoggins drove
¶24Daniel’s Nissan Xterra down the road, stopping at a neighbor’s
¶25house so Charles could show him a revolver and ask where they
¶26could shoot it. That evening, around 7:30 or 8:00, a different
¶27neighbor saw Daniel enter the mobile home. Shortly thereafter, the
¶28neighbor saw Charles throw a firecracker and then drive away in
¶29Daniel’s Xterra.
¶30 Herbert went outside to retrieve his dog, who was afraid of
¶31fireworks. When he came back in, he saw Daniel lying on a bunch
¶32of clothes on the bed in Charles’s bedroom and asked if she was okay.
¶33Daniel did not respond, and Herbert “figured she had just went to
¶34sleep.” But when Charles and Scoggins returned, Herbert told them
¶35to check on her, at which point the two men went into Charles’s
¶36bedroom and “shut the door.”
¶37 Later, Charles and Scoggins left together in Daniel’s Xterra.
¶38Between 9:21 and 11:00 p.m., Scoggins’s girlfriend called Scoggins
¶39 3 several times and overheard Scoggins tell Charles, “[D]on’t shoot
¶40yourself in the toe,” and, “[I]t’s loaded.”
¶41 Sometime after Charles and Scoggins left the mobile home,
¶42Herbert discovered that Daniel was still lying in the same place in
¶43Charles’s bedroom, and, upon seeing blood, he called 911. Officers
¶44responded and found Daniel dead with a bullet hole in her chest and
¶45blood on her arm. Officers also found a bullet hole in one of Charles’s
¶46bedroom windows, and a medical examiner testified that a wound
¶47on Daniel’s upper right arm was consistent with a graze from a
¶48bullet.
¶49 In the early hours of July 6, Scoggins called his sister, Crystal
¶50Scoggins (“Crystal”), to ask for a ride. Crystal picked up Scoggins
¶51and Charles on a forestry road that intersected Manning Mill Road
¶52in the Strawberry Mountain area of Walker County, Georgia. At the
¶53end of the forestry road, officers later found a Nissan Xterra that
¶54had been burned down to the metal frame. A partial VIN number
¶55recovered from the Xterra matched that of Daniel’s vehicle.
¶56 After picking up Charles and Scoggins, Crystal drove the men
¶57 4 back to her house, where Charles made a noose with a belt. Holding
¶58the noose in Crystal’s presence, he “dared [her] to say a word.” In
¶59the afternoon, Crystal and Scoggins dropped off Charles at a
¶60convenience store. Later, an officer responding to a tip about
¶61Charles’s whereabouts located Charles hiding in the woods behind
¶62a trailer.
¶63 At trial, a firearms examiner testified that a bullet recovered
¶64from Daniel’s body was likely fired from a revolver. Although
¶65Herbert owned a revolver, the firearms examiner ruled out Herbert’s
¶66revolver as the source of the bullet that killed Daniel, and Herbert’s
¶67hands tested negative for gunpowder residue.
¶68 2. Charles claims that “the evidence was insufficient to convict
¶69him on any count[ ] in the indictment” under Jackson v. Virginia,
¶70443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). On appeal, it is the
¶71defendant’s burden to show that the trial evidence was insufficient
¶72as a matter of constitutional due process to support his convictions.
¶73See Davis v. State, 312 Ga. 870, 873 (1) n.2 (866 SE2d 390) (2021)
¶74(affirming a defendant’s convictions where his “only” sufficiency
¶75 5 argument that the State failed to disprove his self-defense theory
¶76lacked merit and he “ha[d] not otherwise shown that the
¶77evidence supporting the child cruelty convictions was insufficient as
¶78a matter of constitutional due process”). See also United States v.
¶79Tantchev, 916 F3d 645, 650 (II) (A) (7th Cir. 2019) (“It is the
¶80defendant’s task to convince us of the insufficiency of the
¶81evidence[.]”); United States v. Mack, 729 F3d 594, 604 (II) (B) (6th
¶82Cir. 2013) (noting that “the defendant [must] carry [a] heavy burden
¶83to show that the evidence was insufficient”). When assessing the
¶84sufficiency of the evidence, “we view the evidence presented at trial
¶85in the light most favorable to the verdicts,” Drennon v. State, 314
¶86Ga. 854, 861 (3) (880 SE2d 139) (2022), and “we put aside any
¶87questions about conflicting evidence, the credibility of witnesses, or
¶88the weight of the evidence, leaving the resolution of such things to
¶89the discretion of the jury,” Davis, 312 Ga. at 872-873 (1) (citation
¶90and punctuation omitted). To prevail on a sufficiency challenge, a
¶91defendant must show that, even when the evidence is construed in
¶92the light most favorable to the verdicts, “[no] rational trier of fact
¶93 6 could have found the defendant guilty beyond a reasonable doubt.”
¶94Davis, 312 Ga. at 872 (1). See also United States v. Griffin, 684 F3d
¶95691, 694 (II) (7th Cir. 2012) (“To prevail [on a claim that the evidence
¶96was insufficient to support a conviction, the defendant] must show
¶97that no rational trier of fact could have found that the government
¶98proved the essential elements of the crime beyond a reasonable
¶99doubt.”); United States v. Gaines, 295 F3d 293, 299-300 (II) (2d Cir.
¶1002002) (“To successfully challenge the sufficiency of the evidence
¶101underlying his conviction, [a] defendant bears the heavy burden of
¶102showing—when viewing the evidence in the light most favorable to
¶103the government, and drawing all inferences in favor of the
¶104prosecution—that no rational trier of fact could have found him
¶105guilty.” (citation omitted)).
¶106 Here, Charles has not carried his burden to show that the trial
¶107evidence was constitutionally insufficient to support his convictions.
¶108Charles cites Jackson, asserts “that the State did not prove its
¶109charges beyond a reasonable doubt,” and “asks th[is] Court to
¶110reverse” his convictions. However, he has not articulated why he
¶111 7 contends that the trial evidence was insufficient to support his
¶112convictions, much less formulated an argument showing that the
¶113trial evidence failed to prove an essential element of any crime
¶114charged beyond a reasonable doubt. 2 See Willis v. State, 315 Ga. 19,
¶11523 (2) & n.3 (880 SE2d 158) (2022) (affirming a defendant’s
¶116convictions where the defendant “contend[ed] that the evidence was
¶117not sufficient to sustain his convictions” and “cite[d] Jackson v.
¶118Virginia, [but] ma[de] no argument about the constitutional
¶119sufficiency of the evidence” (citation omitted)). See also Davis, 312
¶120Ga. at 873 (1) (noting that “the jury’s verdict will be upheld” unless
¶121“there is [no] competent evidence . . . to support [a] fact necessary to
¶122make out the State’s case” (citation and punctuation omitted)).
¶123Accordingly, he has not carried his burden on appeal, and this claim
¶124fails. See Davis, 312 Ga. at 873 (1) n.2.
¶125 2 The only argument that Charles makes at all is that “this Court reviews the sufficiency of the evidence sua sponte.” That argument is incorrect. As explained in Davenport v. State, 309 Ga. 385 (846 SE2d 83) (2020), we “end[ed] our practice of sua sponte review of the constitutional sufficiency of the evidence supporting convictions in appeals of non-death penalty murder cases,” starting with cases docketed to the December 2020 term of this Court. Id. at 386. 8 3. Charles argues that the trial court mishandled a potential
¶126issue of juror irregularity. The record shows that, following a 15-
¶127minute recess during Herbert’s testimony, the victim’s mother
¶128reported to a deputy that, during the break, a communication
¶129between her and Charles’s mother had occurred in the restroom.
¶130Addressing counsel outside the presence of the jury, the court
¶131reported:
¶132 I was advised just a moment ago, during the break, apparently there were some jurors in the ladies restroom. That the victim[’]s mother was in the restroom and apparently the mother of one of the Defendant[]s. In which, the Court understands, the victim[’]s mother said something to the – or the defendant’s mother said something to the victim[’]s mother, apologizing for this happening. Which the Court assumes the jury heard, those members of the jury who were in the restroom at the time, heard that conversation.
¶133In response, Charles and Scoggins moved for a mistrial, arguing that
¶134any exposure to an apology was prejudicial because it could indicate
¶135guilt.
¶136 The court then asked the victim’s mother to come forward and
¶137describe the conversation that had occurred in the restroom. She
¶138 9 stated that Charles’s mother “just said that she was sorry and she
¶139wished it could have been her.” When asked if there was “any
¶140conversation about what may have happened,” the victim’s mother
¶141nodded her head “negatively.”
¶142 The court then asked Charles’s mother to come forward and
¶143describe the conversation she had with the victim’s mother.
¶144Charles’s mother said, “I just – she was crying and I just hugged her
¶145and told her that I was so sorry. And if I could have took her
¶146daughter[’]s place I would.” When asked if “[t]hat’s the total extent
¶147of the conversation,” Charles’s mother stated, “That was it.” The
¶148court asked “[h]ow many jurors were in the restroom at the time,”
¶149and Charles’s mother responded, “I didn’t know that there was any.
¶150I’m sorry. I thought they had all walked out. All I seen was her at
¶151the sink washing her hands, crying.”
¶152 Charles’s counsel argued that “[w]e need to find out how many
¶153jurors were in there” because what Charles’s mother had said was
¶154“an indication of guilt.” The court stated that it was “sorry [the
¶155conversation had] happened” but that the court did not believe the
¶156 10 conversation caused prejudice warranting a mistrial because an
¶157“[e]xpression of sympathy, in and of itself for something that
¶158happened to someone, is not an expression of admission of guilt by
¶159your client” and would not give rise to “an inference [by] . . . a juror
¶160that that person is admitting that a defendant committed the offense
¶161for which [he is] being charged.”
¶162 The court then brought the jury back in, and the following
¶163exchange occurred:
¶164 THE COURT: Members of the jury, the Court has been advised that there is the possibility that some members of the jury may have overheard a conversation during the break, involving people not on the jury. The Court is concerned that if that – if there was a conversation overheard, that it would have an impact on that juror or those jurors that may have heard a conversation, to the extent that it would adversely impact that juror[’]s deliberations. I’m going to ask the jury as a whole, to whether there is any member of this jury, that heard any conversation, any matter that may be related to this case, to which you would be unable to totally disregard, forget about it, and it have no bearing on your decisions. If there is any member of the jury who cannot do that, if you would please indicate to the Court.
¶165 ALL JURORS: No response.
¶166 11 THE COURT: There is no member of the jury who indicated any conversation, if they overheard one, if the conversation was overheard, which would have any impact on their decision making process, so that they would not be able to totally disregard that remark. All right. Get your witness.
¶167 A bench conference immediately followed this exchange,
¶168during which Charles’s counsel argued, “Your Honor, you asked if
¶169any conversation [occurred] that would impact the jurors, [but] I
¶170think the question is to ask[ ] if anybody overheard a conversation.”
¶171The court responded that it had “included that [language]. I said, if
¶172there was any juror who overheard any conversation, if any, did that
¶173conversation have any impact.” The court then denied the
¶174defendants’ motion for mistrial, stating, “I think the [c]ourt[’]s
¶175instructions were appropriate.”
¶176 We review a trial court’s denial of a motion for mistrial for
¶177abuse of discretion, “and the trial court’s exercise of [its] discretion
¶178will not be disturbed on appeal unless a mistrial is essential to
¶179preserve the defendant’s right to a fair trial.” Mitchell v. State, __
¶180Ga. __, __ (2) (882 SE2d 322) (2022) (citation and punctuation
¶181 12 omitted). When reviewing a trial court’s “ultimate decision . . . for
¶182an abuse of discretion,” we review factual findings or credibility
¶183determinations underlying the court’s decision “only for clear error.”
¶184Harris v. State, 313 Ga. 872, 883 (5) (874 SE2d 73) (2022)
¶185(addressing the standard of review for evidentiary rulings). See also
¶186Davis v. State, 306 Ga. 430, 433 (831 SE2d 804) (2019) (reviewing
¶187“the trial court’s factual findings and credibility determinations” for
¶188“clear error” and the court’s ultimate denial of a motion to withdraw
¶189a guilty plea for “abuse of discretion”); State v. Hill, 295 Ga. 716,
¶190718-719 (763 SE2d 675) (2014) (concluding that the trial court had
¶191abused its discretion in granting a new trial in part because the
¶192“court clearly erred in regard to material factual findings”).
¶193 “To set aside a jury verdict solely because of irregular jury
¶194conduct, a court must conclude that the conduct was so prejudicial
¶195that the verdict is inherently lacking in due process.” Harris v.
¶196State, 314 Ga. 51, 53 (2) (875 SE2d 649) (2022) (citation and
¶197punctuation omitted). “Any juror [irregularity] that has the
¶198potential to injure a defendant’s due process rights triggers [a]
¶199 13 presumption of prejudice,” and “the prosecution [must then carry]
¶200the burden of establishing beyond a reasonable doubt that no harm
¶201occurred.” Id. at 53-54 (2) (citations and punctuation omitted). “To
¶202establish that the juror [irregularity] was harmless beyond a
¶203reasonable doubt, the State must show based on the record evidence
¶204that there is no reasonable possibility that the juror [irregularity]
¶205contributed to the conviction.” Id. at 54 (2) (citation and punctuation
¶206omitted). As we have explained, “the State may carry this burden
¶207by establishing that the juror [irregularity] was an immaterial
¶208irregularity without opportunity for injury.” Mitchell, __ Ga. at __
¶209(2) (citation and punctuation omitted).
¶210 On appeal, Charles argues that “the trial court abused its
¶211discretion in failing to inquire more specifically whether any jurors
¶212overheard the conversation and what impact it might have had on
¶213them.” According to Charles, “the trial court offered a blanket
¶214instruction and asked if jurors could follow it” without determining
¶215“whether any of [the jurors] heard the conversation and what
¶216particular things they heard.” Charles further argues that, if jurors
¶217 14 overheard the conversation, they could have inferred from the
¶218apology and expression of remorse that Charles’s mother believed
¶219Charles had killed the victim.
¶220 Charles is correct that the wording of the court’s yes-or-no
¶221question appears to have impaired the court’s ability to determine
¶222whether any juror overheard the restroom conversation and thus
¶223whether any juror irregularity might have occurred. The court’s
¶224question to the jurors was compound, asking them both whether
¶225they had overheard a conversation related to the case and whether
¶226they could disregard such a conversation. As a result, the jurors’
¶227lack of a response to the question might have indicated either that
¶228the jurors had not overheard the conversation in the restroom or
¶229that they had overheard the conversation but believed they could
¶230disregard what they heard.
¶231 Nevertheless, under the circumstances, the court did not abuse
¶232its discretion by failing to determine whether jurors were exposed to
¶233the extra-judicial conversation between Charles’s mother and the
¶234victim’s mother. Through its questioning of the two mothers, the
¶235 15 court established that “the total extent” of the conversation in the
¶236restroom was limited to Charles’s mother stating that she “was so
¶237sorry” for the victim’s mother’s loss and that Charles’s mother would
¶238have traded “place[s]” with the victim if she could. The victim’s
¶239mother further confirmed that there was no discussion of “what may
¶240have happened” to the victim. Based on the record, we cannot say
¶241that the trial court clearly erred in finding that the extra-judicial
¶242statements were mere “[e]xpression[s] of sympathy” for what had
¶243happened to the victim, as opposed to an apology for any role Charles
¶244may have played in the victim’s death, and that the expressions of
¶245sympathy did not give rise to an inference that Charles’s mother
¶246believed Charles had “committed the offense[s] for which [he was]
¶247being charged.” It follows that any juror irregularity that might
¶248have occurred “was an immaterial irregularity without opportunity
¶249for injury” and thus that the record “establish[ed] beyond a
¶250reasonable doubt that no harm occurred.” Mitchell, __ Ga. at __ (2)
¶251(citations and punctuation omitted). Accordingly, the trial court did
¶252not abuse its discretion in denying Charles’s motion for a mistrial.
¶253 16 See id.
¶254 4. Charles argues that the trial court erred in denying his
¶255pretrial motion to bifurcate the trial and try separately the charges
¶256for which his status as a felon was material (the felon-in-possession-
¶257of-a-firearm charges and felony-murder charge predicated on the
¶258felon-in-possession-of-a-firearm charges) and the remaining charges
¶259for which he was convicted (malice murder, theft by taking,
¶260conspiracy to commit arson in the second degree, and possession of
¶261a firearm during the commission of a felony). According to Charles,
¶262the court’s ruling violated his due process rights under the
¶263Fourteenth Amendment to the United States Constitution because
¶264introducing “highly prejudicial” evidence of his prior felony
¶265convictions “relieve[d] the State of its burden to prove the charges
¶266through the facts of the case rather than through [his] bad
¶267character.” We disagree.
¶268 In Head v. State, 253 Ga. 429 (322 SE2d 228) (1984), overruled
¶269in part on other grounds by Ross v. State, 279 Ga. 365 (614 SE2d 31)
¶270(2005), this Court provided guidance for when trial courts should
¶271 17 grant a motion to bifurcate trial on a charge of possession of a
¶272firearm by a convicted felon and a more serious charge to “protect
¶273the rights of the accused” under the Due Process Clause of the
¶274Fourteenth Amendment. Id. at 431 (3). If a felon-in-possession-of-
¶275a-firearm charge and a more serious charge are “unrelated,” we
¶276explained, the trial court must grant a motion to bifurcate trial on
¶277the two charges to avoid the possibility that the jury will be “unduly
¶278influenced by evidence of [the defendant’s] prior criminal record.”
¶279Id. at 431-432 (2), (3) (a). But a different rule applies if the felon-in-
¶280possession-of-a-firearm charge “might be material to a more serious
¶281charge,” as in a case where “the possession charge might conceivably
¶282become the underlying felony to support a felony murder conviction
¶283on the malice murder count of the indictment.” Id. at 432 (3) (d). In
¶284such a case, the trial court should deny the motion to bifurcate and
¶285“instruct the jury that . . . they are permitted to receive evidence of
¶286prior convictions” only for the purpose of deciding whether the
¶287defendant is guilty of “the charge of possession” and any “lesser
¶288included offense” of “the more serious charge” for which “such
¶289 18 evidence might be material.” Id. This Court has further held that a
¶290trial court does not err in denying a motion to bifurcate a felony-
¶291murder count from the rest of a defendant’s trial, where the felony-
¶292murder count is predicated on a felon-in-possession-of-a-firearm
¶293charge and the defendant is charged with both felony murder and
¶294malice murder of the same victim. See Tabor v. State, __ Ga. __, __
¶295(2) (a) (882 SE2d 329) (2022) (“[A] trial court does not err in refusing
¶296to bifurcate the charge of possession of a firearm . . . where, as here,
¶297the possession charge was an underlying felony to a murder count
¶298of the indictment. . . . And, to the extent [that the defendant]
¶299contends that the trial court should have
¶300also bifurcated the felony murder count from the rest of his trial [for
¶301malice murder and other offenses], this claim also fails.” (citations
¶302and punctuation omitted)).
¶303 Here, the trial court abided by this Court’s guidance in Head
¶304and its progeny. Because felon-in-possession-of-a-firearm charges
¶305served as “the underlying felon[ies] to support a felony murder
¶306conviction,” they were “material to a more serious charge,” and Head
¶307 19 required that the court deny the motion to bifurcate. Head, 253 Ga.
¶308at 432 (3) (d). See also Tabor, __ Ga. at __ (2) (a).
¶309 Further, the trial court faithfully complied with Head’s
¶310directive that a court denying a motion to bifurcate under such
¶311circumstances “instruct the jury that . . . they are permitted to
¶312receive evidence of prior convictions” for the limited purpose of
¶313deciding whether the defendant was guilty of charges for which
¶314“such evidence might be material.” Head, 253 Ga. at 432 (3) (d).
¶315Specifically, when the State admitted certified copies of the
¶316defendants’ convictions at trial, the court told the jurors that “you
¶317may consider this evidence only in so far as it may relate to the
¶318required element of a conviction of a felony, for the offenses as
¶319alleged in the Indictment, in Counts 3, 4, 6, 7, 8 and 9, and not for
¶320any other Count or any other purpose.” 3 During its jury charge, the
¶321court gave the same instruction again.
¶322 3Counts 3 and 4 charged Charles and Scoggins, respectively, with felony murder predicated on possession of a firearm by a convicted felon. Counts 6 and 7 charged Charles with being a felon in possession of a firearm, and Counts 8 and 9 charged Scoggins with being a felon in possession of a firearm. 20 Charles contends that we should reconsider the rule
¶323announced in Head—that a felon-in-possession-of-a-firearm charge
¶324should not be bifurcated when it is material to a more serious
¶325charge—because the jury’s consideration of a defendant’s felony
¶326status “incurably injects bad character evidence into the jury’s
¶327consideration.” However, Charles has failed to explain why giving
¶328a limiting instruction in accordance with Head’s directive did not
¶329cure any prejudice that might have arisen from admission of his
¶330prior convictions. The trial court gave two limiting instructions—
¶331both of which directed the jury not to consider evidence of Charles’s
¶332prior convictions when deciding the charges for which his status as
¶333a felon was not material—and “the jury is presumed to follow the
¶334instructions of the trial court absent clear evidence to the contrary.”
¶335See Ash v. State, 312 Ga. 771, 781 (2) (865 SE2d 150) (2021).
¶336Accordingly, this enumeration of error fails. 4
¶337 4Charles also argues that permitting the State to “us[e] possession of a firearm by a convicted felon as the underlying felony in [his] felony murder count,” and allowing the State to try together counts of being a felon in possession of a firearm and felony murder, violated his due process rights. This
¶338 21 5. Finally, Charles argues that trial counsel was ineffective for
¶339failing “to object to the use of possession of a firearm by a convicted
¶340felon as the underlying offense for felony murder” because including
¶341the felon-in-possession charges as predicate offenses for felony
¶342murder violated his “Fourteenth Amendment right to a fair trial” on
¶343the felony-murder count, and because, when testifying at the
¶344motion-for-new-trial hearing, trial counsel provided “no reason or
¶345explanation for his failure to object.” This claim is moot, however,
¶346because Charles’s convictions for felony murder were vacated by
¶347operation of law. See Powell v. State, 291 Ga. 743, 749 (3) (733 SE2d
¶348294) (2012) (holding that an ineffective-assistance-of-counsel claim
¶349is so, Charles argues, because using a felon-in-possession charge as a predicate for felony murder “inextricably link[ed] [his] felon[ ] status under the possession count to the felony murder charge” and thereby required the jury to consider prejudicial character evidence when determining whether he was guilty of felony murder. These arguments focus only on how the felon-inpossession counts affected the related felony-murder count, not on any broader effect that the felon-in-possession counts had on the jury’s consideration of the charges as a whole. However, these arguments are moot because, after Charles was convicted of malice murder, the felony-murder count premised on being a felon in possession of a firearm was vacated by operation of law. See Johnson v. State, 313 Ga. 698, 699 n.2 (873 SE2d 123) (2022) (“Because the felony murder count was vacated by operation of law, [the defendant’s] contention as to this offense is moot.”). 22 based on counsel’s failure to object to an alleged constructive
¶350amendment of an indictment charging felony murder and
¶351aggravated assault was moot “because the convictions for felony
¶352murder and aggravated assault were either vacated by operation of
¶353law or merged into the malice murder conviction”).
¶354 Judgment affirmed. All the Justices concur.
¶355 23