CourtListener 10680349

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319 Ga. 78
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S24A0170. HUBER v. THE STATE.

MCMILLIAN, Justice.

Appellant Andrew Thomas Huber was convicted of felony

murder predicated on aggravated assault in relation to the shooting

death of Daniel Raburn.1 On appeal, Huber argues that the evidence

was insufficient to support his felony murder conviction, his trial

counsel rendered ineffective assistance on various grounds, and the

1 Raburn died on July 3, 2020. On May 28, 2021, a Laurens County grand

jury indicted Huber, as a party to the crimes, for malice murder (Count 1),
felony murder predicated on aggravated assault (Count 2), and three counts of
aggravated assault against Raburn (Counts 3-5). Huber’s accomplices Thomas
Wayne Harper and Brandilee Nicole Woodard-Brady were separately indicted
on the same charges. Prior to Huber’s trial, Harper was tried and convicted of
voluntary manslaughter and aggravated assault, and Woodard-Brady entered
a guilty plea to voluntary manslaughter. At a trial from October 4 through 7,
2022, a jury found Huber not guilty of malice murder but guilty of all the
remaining counts against him. The trial court sentenced Huber to life in prison
without the possibility of parole for felony murder; the aggravated assault
counts were merged for sentencing purposes.
Huber filed a timely motion for new trial on October 28, 2022, which was
thrice amended by new counsel on May 8, May 31, and June 9, 2023. Following
a hearing on May 30, 2023, the trial court denied Huber’s motion for new trial,
as amended, on August 3, 2023. Huber filed a timely notice of appeal on August
24, 2023, and the case was docketed to the term of this Court beginning in
December 2023 and thereafter submitted for a decision on the briefs.
trial court committed plain error in instructing the jury on simple

assault and voluntary manslaughter. For the reasons that follow, we

affirm.

Viewed in the light most favorable to the jury’s verdict, the

evidence at trial showed that Huber had been friends with Brandilee

Woodard-Brady for many years and was temporarily living with her

and her fiancé, Raburn. Raburn and Woodard-Brady’s relationship

was “rocky” and “toxic,” and she had previously gotten a temporary

protective order against him but later had it rescinded. Thomas

Harper was a mutual friend of Huber and Woodard-Brady, and

Harper had also occasionally spent time with Raburn but “didn’t

really know” him. On July 4, 2020, law enforcement officers arrived

at Raburn and Woodard-Brady’s house for a welfare check, where

officers found Raburn’s body lying in the yard with multiple

lacerations and abrasions and a gunshot wound to the head. Police

contacted Woodard-Brady that same day and questioned her at the

police station.

At the interview, Woodard-Brady told police that she “didn’t

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know what had happened.” Detectives later questioned Woodard-

Brady again at her sister’s house, and at that point, she admitted

that she knew Huber and Harper had beat up Raburn but said “they

wasn’t supposed to kill him.” After Woodard-Brady was arrested,

she asked to speak to a detective again, and at that point, she

admitted that she had asked Huber and Harper over to the house to

“beat [Raburn’s] a**.” When police arrested Harper, they found a

gun at his residence, and Harper admitted at trial that he shot

Raburn with it. And when police arrested Huber and processed his

car, they found bloody clothes behind a speaker, and he admitted

that the bloody clothes were the clothes he was wearing when

Raburn was shot. DNA analysis revealed that the blood on Huber’s

clothes belonged to Raburn.

At trial, Woodard-Brady testified that on July 3, 2020, she and

Raburn got into a verbal altercation at their home and he pushed

her, so she texted Huber, “[b]eat his a**,” after which, Huber and

Harper came to the house. According to Woodard-Brady, she

remained in the house, but she saw Huber and Harper pull up,

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heard “noises,” and “figured that [Huber and Harper] were beating

[Raburn] up.” She also stated that though she called Huber and

Harper over to beat up Raburn, she “wasn’t expecting them to go to

that extreme.” She testified that after the beating, she went outside

long enough to see Raburn lying on the ground and that “I thought

he had just — that he was either knocked out or passed out, I did

not know that he had been shot and killed.” She testified that after

Huber and Harper left, she also left and went to a friend’s house to

stay the night and that she never checked on Raburn or called 911.

According to her friend, when Woodard-Brady arrived, Woodard-

Brady immediately began drinking tequila from the bottle and

asked her friend to punch her in the face so that she had an alibi.

Woodard-Brady also admitted on direct examination that she had

pleaded guilty to voluntary manslaughter in relation to Raburn’s

death. On cross-examination, Huber’s counsel elicited testimony

from Woodard-Brady that she regularly abused alcohol and drugs,

and that her “story changed each time” she talked to the police.

Harper testified that Woodard-Brady never contacted him to

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come over and beat up Raburn. According to Harper, when he and

Huber arrived at Raburn and Woodard-Brady’s house, Raburn was

holding a wrench and Huber got out of the car and “exchanged

words” with Raburn before Raburn told Huber to “get that n****r

out of his yard,” which angered Harper, who exited the car. Raburn

then dropped the wrench and “got into an altercation” with Huber,

and the two men fought on the ground before Raburn got up,

“rushed” Harper, and tackled him, causing Harper’s gun to fall out

of his pocket. Harper said that he and Raburn then fought with each

other and “tussled over the gun” before Harper gained control of it

and shot Raburn as Raburn continued to hurl racial slurs at Harper;

Huber then drove Harper away. Harper further testified that

although Harper shot Raburn, Harper did not cause any other

“lacerations” or “indentations” on Raburn’s head, so Huber must

have caused those injuries.

Huber also testified at trial. According to Huber, on July 3,

Woodard-Brady texted him that Raburn was “acting unusual,” so he

told her he would come by and “check on them.” Huber drove Harper

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to the house, and they went inside to speak with Woodard-Brady

before Huber walked back outside to talk to Raburn; Huber

described Raburn as “fine.” So, Huber went back inside, where he

saw Woodard-Brady and Harper kissing. Huber and Harper then

left, but later that day, Woodard-Brady called Huber, crying,

causing Huber to drive back to the house with Harper.

According to Huber, when he and Harper arrived back at the

house, Raburn was sitting in his car drinking a beer, and after he

saw them pull up, he got out of his car while holding a tire iron and

at one point, yelled, “[g]et that n****r out of my yard.” Huber and

Harper got out of Huber’s car, and a verbal altercation began

between Harper and Raburn. Harper asked Raburn why he would

need the tire iron, and Raburn said he didn’t and threw it down.

Huber testified that after he noticed Raburn and Harper were

“getting more heated,” Huber approached Raburn, and Huber and

Raburn began “tussl[ing]” and “rolled around in the grass,” as

Raburn was “trying to put [Huber] in a headlock.” Huber said that

he and Raburn “broke apart,” Raburn “calmed down a little bit,” and

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Huber began to walk away, but as he walked toward his car, Huber

heard a “clink” and “froze” because he thought it might be somebody

getting hit with a bottle and it scared him. Huber testified that

“[a]fter that, out of my peripheral, I could see that Raburn stumbled

for, like, a second and then he turned around and rushed Harper”

and “got Harper on his back.” According to Huber, “they were

struggling over something in their hands,” and Harper yelled “get

him off of me, get him off of me,” so Huber grabbed Raburn and

pulled him off Harper. Huber testified that he then walked back to

his car, and that was when he heard a gunshot.2 Harper then ran

toward the car and told Huber to “get the F in the car,” so they both

got in, and Huber drove them away. As Huber drove them away,

Harper said “lights out” and told him “[t]he same thing could happen

to [Huber].” Huber dropped Harper off and did not go back to Raburn

and Woodard-Brady’s house. Neither Huber, Harper, nor Woodard-

Brady called 911 for help or to report the incident.

A neighbor who was in her home at the time of the incident

2 Huber testified that Harper “always toted a gun.”

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testified that she heard voices arguing, including a man yelling

“b***h, did you call me a n****r,” followed by a loud noise, then a

woman screaming, and finally a car driving away.

1. Huber contends that the evidence presented at trial was

insufficient to support his conviction for felony murder predicated

on aggravated assault. We disagree.

When this Court evaluates the constitutional sufficiency of the

evidence, “we review whether the evidence presented at trial, when

viewed in the light most favorable to the jury’s verdicts, enabled the

jury to find the defendant guilty beyond a reasonable doubt of the

crimes of which [he] was convicted.” Fitts v. State, 312 Ga. 134, 141

(3) (859 SE2d 79) (2021) (citing Jackson v. Virginia, 443 U.S. 307,

319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)). “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).

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“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). “Felony murder

requires only that the defendant possessed the requisite criminal

intent to commit the underlying felony — in this case, aggravated

assault, which also does not require intent to kill.” Mathews v. State,

314 Ga. 360, 365 (1) (877 SE2d 188) (2022) (citation and punctuation

omitted). Under the relevant part of Georgia’s aggravated assault

statute, “[a] person commits the offense of aggravated assault when

he or she assaults: . . . [w]ith a deadly weapon or with any object,

device, or instrument which, when used offensively against a person,

is likely to or actually does result in serious bodily injury.” OCGA §

16-5-21 (a) (2).

OCGA § 16-2-20 (a) provides 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.” To obtain a

conviction of a person as a party to the crime, the State must prove

“that he intentionally aided or abetted in the commission of the

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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). “Conviction 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.” Rooks v.

State, 317 Ga. 743, 751 (2) (893 SE2d 899) (2023) (citation and

punctuation omitted).

Thus, to prove Huber guilty of the charge of felony murder

predicated on aggravated assault, it was not necessary for the State

to prove that he personally hit, kicked, or shot Raburn so long as the

State proved that Huber was a party to the crimes. See Scoggins v.

State, 317 Ga. 832, 836-39 (1) (a)-(b) (896 SE2d 476) (2023) (even

where evidence did not conclusively establish which of two

defendants shot victim or had a weapon, evidence of a common

criminal intent, including defendant’s presence, companionship, and

conduct before and after the fatal shooting supported conviction as

a party to the crime of murder).

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Here, the evidence showed that Woodard-Brady texted Huber

to come “beat [Raburn’s] a**” and that Huber then came to the

house. Huber also admitted at trial that Woodard-Brady had

requested Huber to come over and that she was crying, that Huber

drove Harper (whom Huber knew to always carry a gun) to the

house, and that Huber and Harper both engaged in a physical fight

with Raburn once they arrived. Moreover, Huber admitted that he

aided Harper during Harper’s fight with Raburn. And after Harper

shot and killed Raburn, Huber drove Harper away and never called

911. Huber’s clothes were also covered with Raburn’s blood despite

Huber’s claim that he was not near Raburn when Harper shot him.

Thus, the evidence supported Huber’s presence and active

participation before, during, and after the crimes.

We conclude that this evidence, when viewed in the light most

favorable to the jury’s verdict, was sufficient as a matter of

constitutional due process to support Huber’s conviction for felony

murder predicated on aggravated assault, at least as a party to the

crimes. See, e.g., Harris v. State, 312 Ga. 602, 604-05 (2) (864 SE2d

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31) (2021) (“even if someone else fired the fatal shot, it is clear that

[a]ppellant and that individual joined in the attack on the victim,”

and the jury was authorized to conclude that appellant was at least

a party to the crime of felony murder predicated on aggravated

assault (citation and punctuation omitted)); Griffin v. State, 292 Ga.

321, 322 (1) (737 SE2d 682) (2013) (“Although [appellant] argues his

admission that he hit [victim] was insufficient to convict him of

felony murder based on an aggravated assault, there was evidence

from which the jury was authorized to determine that he either

directly participated in or was a party to a crime of aggravated

assault which caused the death of another.”); Ellis v. State, 292 Ga.

276, 279 (1) (736 SE2d 412) (2013) (evidence was sufficient to

support appellant’s conviction as a party to the crime of felony

murder predicated on aggravated assault where “[e]ven if

[appellant] did not have the specific intent that [victim] be killed,

the crimes which he did intend were dangerous ones; by their

attendant circumstances, they created a foreseeable risk of death.”

(citation and punctuation omitted)). Accordingly, this enumeration

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of error fails.

2. Huber also contends that his trial counsel rendered

ineffective assistance (a) by failing to request an instruction that in

assessing witness credibility, the jury was authorized to consider

negotiated pleas, leniency, or similar matters, or to request an

instruction on impeachment concerning a witness’s bias or motive;

and (b) by failing, on his cross-examination of Woodard-Brady, to

adduce evidence about the sentence she received in exchange for her

guilty plea to voluntary manslaughter, the maximum sentence she

avoided, and the dismissal of the other counts against her. These

claims fail.

To succeed on a claim of ineffective assistance of counsel,

Huber must show both that his counsel’s performance was deficient

and that such deficiency prejudiced his defense. See Strickland v.

Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)

(1984). To satisfy the deficiency prong, Huber must demonstrate

that his counsel “performed at trial in an objectively unreasonable

way considering all the circumstances and in the light of prevailing

13
professional norms.” Bacon v. State, 316 Ga. 234, 239 (3) (887 SE2d

263) (2023) (citation and punctuation omitted). In doing so, Huber

must overcome “[a] strong presumption . . . that trial counsel’s

performance was reasonable and that counsel’s decisions and

choices at trial fell within the broad range of professional conduct as

assessed from counsel’s perspective at the time of trial and under

the specific circumstances of the case.” Id. (citation and punctuation

omitted). To establish prejudice, Huber “must prove that there is a

reasonable probability that, but for his trial counsel’s deficiency, the

result of the trial would have been different.” Bates v. State, 313 Ga.

57, 62 (2) (867 SE2d 140) (2022). And if Huber fails to make a

sufficient showing on either the deficiency or the prejudice prong,

we need not address the other prong. See Washington v. State, 313

Ga. 771, 773 (3) (873 SE2d 132) (2022).

(a) Failure to Request Jury Instructions. Huber argues that his

trial counsel rendered ineffective assistance by failing to request the

pattern jury instruction: “In assessing the credibility of a witness,

you may consider any possible motive in testifying, if shown. In that

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regard you are authorized to consider any possible pending

prosecutions, negotiated pleas, grants of immunity or leniency, or

similar matters.” Georgia Suggested Pattern Jury Instructions, Vol.

II: Criminal Cases § 1.31.80. Separately, Huber argues that his trial

counsel rendered ineffective assistance by failing to request a jury

charge on impeachment concerning a witness’s bias or motive.

But the trial court gave the suggested pattern jury instructions

on credibility of witnesses; witness, attacked; witness, impeached;

prior statements; single witness; accomplice corroboration;

presumption of innocence; the State’s burden of proof; mere

presence; and grave suspicion — including that in deciding witness

credibility,

you may consider all of the facts and circumstances of the
case, including the witnesses’ manner of testifying, their
means and opportunity of knowing the facts about which
they testify, the nature of the facts about which they
testify, the probability or improbability of a testimony,
their interest or lack of interest in the outcome of the case,
and their personal creditability [sic] as you observe it.

See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal

Cases § 1.31.10. Because we have held that these instructions

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adequately covered the concept set out in Pattern Instruction §

1.31.80, the failure to request that charge is not deficient. See

Perkins v. State, 313 Ga. 885, 902 (5) (a) (873 SE2d 185) (2022)

(“[T]he trial court adequately covered [Pattern Instruction § 1.31.80]

in the instructions it gave the jury on witness credibility and

impeachment.”). Similarly, we have held that the instructions given

by the trial court sufficiently covered the concept of impeachment by

showing bias or motive. See Lee v. State, 281 Ga. 776, 777-78 (3) (642

SE2d 835) (2007) (trial court’s instruction that the jury is “the

arbiter of each witness’s credibility and that it should give

consideration to each witness’s interest or lack thereof in the

outcome of the case . . . adequately covered the possible motive,

interest, or bias of the State’s witnesses,” and therefore “trial

counsel did not render ineffective assistance by failing to request an

additional instruction”).

Huber argues on appeal that Lee and its progeny should be

overruled. But this argument does not support his ineffective

assistance claim since “there is no general duty on the part of

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defense counsel to anticipate changes in the law.” Williams v.

Rudolph, 298 Ga. 86, 89 (777 SE2d 472) (2015) (citation and

punctuation omitted). Accordingly, Huber has not shown that his

counsel was deficient in this respect, and this claim fails.

(b) Cross-Examination of Woodard-Brady. Huber

acknowledges that the jury heard evidence that Woodard-Brady

pleaded guilty to voluntary manslaughter but argues that his trial

counsel rendered ineffective assistance by failing, on his cross-

examination of Woodard-Brady, to adduce evidence about the

sentence she received in exchange for her guilty plea, the maximum

sentence she avoided for murder and three counts of aggravated

assault, and the dismissal of those counts, which Huber contends

was relevant to Woodard-Brady’s bias and motive to testify against

Huber.

Pretermitting whether counsel was deficient in failing to elicit

the penalties that Woodard-Brady faced before pleading guilty, we

conclude that Huber has not met his burden of demonstrating that

he was prejudiced by the alleged deficiency. The evidence against

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Huber was strong. Huber admitted at trial that he went over to

Woodard-Brady’s house on the day of the murder, that Huber and

Harper together fought Raburn, that Harper asked Huber to help

him pull Raburn off him during the fight, and that subsequently

Harper shot Raburn. Even though Huber claimed to have walked

away and been by his car at the time of the shooting, Raburn’s blood

was found on Huber’s clothes. In contrast, although Woodard-Brady

claimed that she asked Huber to come over to beat Raburn, she also

testified that she did not witness the fight or the shooting.

Also, counsel attempted to impeach Woodard-Brady’s

credibility. As recognized by the trial court, the jury heard that

Woodard-Brady pleaded guilty to voluntary manslaughter in

connection with her role in the shooting. Moreover, Woodard-Brady

acknowledged on direct examination that she “lied by omission,” and

Huber’s trial counsel further cross-examined her on that point by

having her admit on the stand that her “story changed each time”

she talked to the police. Given the foregoing, Huber has not

established a reasonable probability that but for counsel’s failure to

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further impeach Woodard-Brady by eliciting information about the

penalties that Woodard-Brady avoided by pleading guilty, the result

of his trial would have been different. See, e.g., Benton v. Hines, 306

Ga. 722, 725 (2) (832 SE2d 801) (2019) (counsel’s failure to elicit

evidence of witness’s maximum possible sentence did not prejudice

defendant where jury heard other details of witness’s plea deal, and

witness’s testimony was corroborated by other evidence, including

defendant’s own incriminating statement); McCoy v. State, 303 Ga.

141, 143 (2) (810 SE2d 487) (2018) (“In light of the strong evidence

of guilt, there is no reasonable probability that the outcome of the

trial would have been different had trial counsel utilized alternative

impeachment evidence.”). This claim therefore fails.

3. Conceding that his trial counsel did not object to the trial

court’s jury instructions on simple assault (as an element of

aggravated assault) and voluntary manslaughter, Huber contends

that the trial court plainly erred in its instructions to the jury on

these legal principles. See OCGA § 17-8-58 (b) (“Failure to object in

accordance with subsection (a) of this Code section shall preclude

19
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.”). Huber’s claims fail.

To show plain error, Huber “must demonstrate that the

instructional error was not affirmatively waived, was obvious

beyond reasonable dispute, likely affected the outcome of the

proceedings, and seriously affected the fairness, integrity, or public

reputation of judicial proceedings. Satisfying all four prongs of this

standard is difficult, as it should be.” Rice v. State, 311 Ga. 620, 623

(1) (857 SE2d 230) (2021) (citation and punctuation omitted). And

this Court does not have to analyze all elements of the plain-error

test where an appellant fails to establish any one of them. See Lewis

v. State, 311 Ga. 650, 665 (4) (859 SE2d 1) (2021).

(a) Simple Assault. As part of its instruction on aggravated

assault, the trial court instructed the jury on simple assault, stating:

“To prove assault, the State does not have to prove that the other

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person was actually injured. However, the State must prove that the

defendant attempted to cause a violent injury to the person and/or

committed an act that placed the person in reasonable apprehension

or fear of immediately receiving a violent injury.” Although not

entirely clear, Huber seems to argue that based on the allegations

of the indictment, the trial court should have only instructed the

jury on simple assault under OCGA § 16-5-20 (a) (1), which provides

that a person commits the offense of simple assault when he

“[a]ttempts to commit a violent injury to the person of another,” such

that the trial court’s additional charge defining an assault as an

action that places “the person in reasonable apprehension or fear of

immediately receiving a violent injury” misstated the law.

However, Huber was charged with aggravated assault by

attempting to commit a violent injury in Counts 3 and 4 and with

aggravated assault by committing an act which places another in

reasonable apprehension of receiving a violent injury in Count 5,3 so

3 Regarding the aggravated assault counts of Huber’s indictment, Count

3 charged him with “mak[ing] an assault upon the person of Daniel Hugh

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the trial court properly gave the suggested pattern jury instructions

concerning assault based on the allegations and evidence presented

in the case. See OCGA § 16-5-20 (a) (“A person commits the offense

of simple assault when he or she either: (1) Attempts to commit a

violent injury to the person of another; or (2) Commits an act which

places another in reasonable apprehension of immediately receiving

a violent injury.”); Georgia Suggested Pattern Jury Instructions,

Vol. II: Criminal Cases § 2.20.21 (“For aggravated assault, the State

must prove that the Defendant: 1. assaulted another person 2. (with

a deadly weapon) (with an offensive weapon). To prove assault, the

State does not have to prove that the other person was actually

injured. However, the State must prove that the Defendant

(attempted to cause a violent injury to the person) (committed an act

Raburn with a firearm, a deadly weapon in the manner used, by intentionally
shooting said victim in an attempt to commit a violent injury upon said
person”; Count 4 charged Huber with “mak[ing] an assault upon the person of
Daniel Hugh Raburn with the hands and feet of said accused, deadly weapons
in the manner used, by intentionally striking said victim in an attempt to
commit a violent injury upon said person”; and Count 5 charged Huber with
“mak[ing] an assault upon the person of Daniel Hugh Raburn with the hands
and feet of said accused, deadly weapons in the manner used, by placing the
said victim in reasonable apprehension of receiving a violent injury by
intentionally striking said victim.”
22
that placed the person in reasonable apprehension or fear of

immediately receiving a violent injury).”). There was no error, plain

or otherwise, and Huber’s argument fails.

(b) Voluntary Manslaughter. Huber argues that the jury

charge on voluntary manslaughter was plain error because by

referring only to “the defendant,” the trial court failed to also

instruct the jury that Harper could have been provoked by Raburn’s

words to a sudden, violent, and irresistible passion and if Harper

was so provoked, Huber would have been also because Huber had

been charged as a party to the crimes.

However, not only did the trial court instruct the jury on

voluntary manslaughter at Huber’s request, it gave the charge

requested by Huber—which was the suggested pattern jury

instruction and which referred to “the defendant,” rather than

“Harper”—verbatim. See Georgia Suggested Pattern Jury

Instructions, Vol. II: Criminal Cases §§ 2.10.40-42. And when an

appellant has invited an alleged error, it constitutes an affirmative

waiver under plain-error review, thus providing no basis for

23
reversal. Shank v. State, 290 Ga. 844, 845 (2) (725 SE2d 246) (2012);

see also Vasquez v. State, 306 Ga. 216, 229 (2) (c) (830 SE2d 143)

(2019) (“An affirmative waiver may occur, for example, when a

defendant . . . explicitly requests a jury instruction that he later

argues on appeal should not have been given.”); Shaw v. State, 292

Ga. 871, 873 (2) n.3 (742 SE2d 707) (2013) (under plain error review,

“reversal is not warranted if the error was invited by the appellant”).

Huber’s claim therefore fails at the first prong of the plain error test.

Judgment affirmed. All the Justices concur.

Decided April 30, 2024 — Reconsideration denied May 29, 2024.

Murder. Laurens Superior Court. Before Judge Green.

Frances C. Kuo, for appellant.

L. Craig Fraser, District Attorney, Cheryl B. Hightower,

Assistant District Attorney; Christopher M. Carr, Attorney General,

Beth A. Burton, Deputy Attorney General, Meghan H. Hill, Clint C.

Malcolm, Senior Assistant Attorneys General, for appellee.

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: April 30, 2024

S24A0170. HUBER v. THE STATE.

MCMILLIAN, Justice.

Appellant Andrew Thomas Huber was convicted of felony

murder predicated on aggravated assault in relation to the shooting

death of Daniel Raburn.1 On appeal, Huber argues that the evidence

1Raburn died on July 3, 2020. On May 28, 2021, a Laurens County
grand jury indicted Huber, as a party to the crimes, for malice murder (Count
1), felony murder predicated on aggravated assault (Count 2), and three counts
of aggravated assault against Raburn (Counts 3-5). Huber’s accomplices
Thomas Wayne Harper and Brandilee Nicole Woodard-Brady were separately
indicted on the same charges. Prior to Huber’s trial, Harper was tried and
convicted of voluntary manslaughter and aggravated assault, and Woodard-
Brady entered a guilty plea to voluntary manslaughter. At a trial from October
4 through 7, 2022, a jury found Huber not guilty of malice murder but guilty
of all the remaining counts against him. The trial court sentenced Huber to
life in prison without the possibility of parole for felony murder; the aggravated
assault counts were merged for sentencing purposes.
Huber filed a timely motion for new trial on October 28, 2022, which was
thrice amended by new counsel on May 8, May 31, and June 9, 2023. Following
a hearing on May 30, 2023, the trial court denied Huber’s motion for new trial,
as amended, on August 3, 2023. Huber filed a timely notice of appeal on
August 24, 2023, and the case was docketed to the term of this Court beginning
in December 2023 and thereafter submitted for a decision on the briefs.
was insufficient to support his felony murder conviction, his trial

counsel rendered ineffective assistance on various grounds, and the

trial court committed plain error in instructing the jury on simple

assault and voluntary manslaughter. For the reasons that follow,

we affirm.

Viewed in the light most favorable to the jury’s verdict, the

evidence at trial showed that Huber had been friends with Brandilee

Woodard-Brady for many years and was temporarily living with her

and her fiancé, Raburn. Raburn and Woodard-Brady’s relationship

was “rocky” and “toxic,” and she had previously gotten a temporary

protective order against him but later had it rescinded. Thomas

Harper was a mutual friend of Huber and Woodard-Brady, and

Harper had also occasionally spent time with Raburn but “didn’t

really know” him. On July 4, 2020, law enforcement officers arrived

at Raburn and Woodard-Brady’s house for a welfare check, where

officers found Raburn’s body lying in the yard with multiple

lacerations and abrasions and a gunshot wound to the head. Police

contacted Woodard-Brady that same day and questioned her at the

2
police station.

At the interview, Woodard-Brady told police that she “didn’t

know what had happened.” Detectives later questioned Woodard-