Simmons v. State

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 No. S26A0601 Tyree Jaron Simmons v. The State On Appeal from the Superior Court of Gwinnett County No. 22B023393 Decided: August 18, 2026 ELLINGTON, Justice. Tyree Jaron Simmons appeals his convictions for malice murder and other offenses in connection with the shooting death of Christine Walker and the aggravated assault of A’Jadeen Cunningham. 1 On appeal, he argues that the evidence was 1 The crimes occurred on the morning of February 22, 2022. A grand jury indicted Simmons on June 1, 2022, in connection with the crimes and charged him with one count of malice murder (Count 1); three counts of felony murder (Counts 2, 3, and 4); two counts of aggravated assault, with one count alleging an aggravated assault upon Walker (Count 5) and the other alleging an aggravated assault upon Cunningham (Count 6); one count of criminal damage to property in the first degree (Count 7); and one count of possession of a firearm during the commission of a felony (Count 8). A jury convicted Simmons on all counts following a trial held in September 2024. The trial court sentenced Simmons on October 16, 2024, to life in prison without the possibility of parole on Count 1; 20 years in prison on Count 6, to run consecutively to Count 1; ten years to serve in prison on Count 7, to run consecutively to Count 6; and five years to serve in prison on Count 8, to run consecutively to Count 7. The remaining charges were either merged or insufficient to support the verdict of malice murder. He also asserts that the trial court erred in granting the State’s motion to introduce evidence under OCGA § 24-4-404(b) (“Rule 404(b)”), in charging the jury on evidence of prior difficulties between Simmons and Walker, and in charging the jury that “intent to murder” was a material element in the offense of aggravated assault. We affirm for the reasons set forth below. Viewed in the light most favorable to the verdict, the record shows the following. In the early morning hours of February 22, 2022, Walker was killed as she slept when someone fired gunshots through the window of the extended stay motel room she shared with Cunningham, her 17-year-old grandson. Cunningham was asleep on a sofa in the room when he awoke to the sound of gunfire. After checking on his grandmother and finding her unresponsive, he called the police. A neighbor in an adjoining room testified that he also awoke to gunfire and discovered that bullets had entered his room through the wall just above the bed where he was sleeping. The medical examiner testified at trial that Walker died of a gunshot wound to her head. When officers from the Gwinnett County Police Department arrived on the scene of Walker’s shooting, they spoke with Cunningham, who led them to the room of a person whom Cuningham said wanted to hurt him, but no one was there. Police later determined that the room was rented by Simmons. vacated by operation of law. Simmons’s trial counsel filed a timely motion for new trial on October 22, 2024, and new counsel filed an amended motion for new trial on August 4, 2025. After both the defense and the State declined a hearing, the trial court denied the motion for new trial based on the parties’ briefs and a review of the record. The case was docketed to the April 2026 term of this Court and submitted for a decision on the briefs. 2 Cunningham testified that he led police to Simmons’s room because Simmons “was the only person who had any ill feelings towards” Cunningham at the motel. Cunningham later explained to investigators that his first interaction with Simmons occurred a few weeks before his grandmother was shot. At that time, Simmons’s younger cousin, “Memphis,” wanted to confront Simmons about threats Simmons had allegedly made concerning Memphis’s mother. Memphis asked Cunningham to accompany him to Simmons’s room because Memphis was reluctant to go there alone. When Memphis and Cunningham entered the room, Memphis and Simmons began arguing. During the argument, Memphis grabbed an assault rifle and a Glock firearm that were already inside Simmons’s room. When Cunningham saw that Simmons was going to retaliate, he grabbed Simmons to prevent a physical altercation. Memphis fled the room with the guns, and Cunningham did not release Simmons until Simmons calmed down. When Cunningham let go, Simmons ran from the room after Memphis. Around 20 minutes later, Simmons confronted Cunningham as Cunningham stood outside his own room. Cunningham tried to explain that he did not know that Memphis intended to take Simmons’s guns when they went to Simmons’s room. But Simmons continued to act aggressively, “like he wanted to fight,” and put a gun to Cunningham’s head. After Cunningham protested that he did not want any trouble, Simmons slapped him and “took a small amount of marijuana” from him. Simmons told Cunningham, “I could really kill you … but I’m not.” Instead, he told Cunningham to go inside his motel room. Cunningham did so and looked out the window as Simmons walked away. Cunningham described the gun Simmons used that 3 day as a “thick gun with an attachment under the barrel.” Although Cunningham rarely saw Simmons spending time outside of his room before the incident with Memphis, afterward he noticed Simmons outside more often. Simmons would stand or walk near the room Cunningham shared with his grandmother, “watching and staring” at Cunningham or his room in a way that was not “normal” and which made Cunningham “paranoid.” As a result, Cunningham often stayed up late to watch Simmons’s room from his car, which Cunningham parked across the street. Cunningham watched Simmons’s room for several hours the morning his grandmother was shot. He went back to his room around 3:00 a.m., where he took a shower and slept on the sofa until he was awakened by gunfire. On March 2, 2022, a motel housekeeper found a firearm concealed in the stovetop of Simmons’s motel room, which had been locked since February 23, 2022, the day after the shooting. No guest room key was used to enter the room in the interim. Police collected the firearm, which an officer described as a Glock semi-automatic pistol with a light or laser underneath and an aftermarket switch attached that allowed the semi-automatic weapon “to fire as a fully automatic pistol.” Police later determined that test rounds fired from that weapon matched the shell casings collected outside Walker and Cunningham’s motel room the morning of the shooting. In addition, shell casings from an incident in 2021 were also matched to the Glock pistol found in Simmons’s room. In that incident, Gwinnett County police were dispatched to a report of shots fired at an apartment complex, where officers discovered shell casings on the back patio of one of the apartment units. When they knocked on the apartment door to inquire, Simmons answered and denied that he or his sister, who also lived there, 4 had been shooting any guns. Although Simmons was not arrested in connection with the 2021 report of shots fired, the shell casings collected at the scene were entered into a firearms database. Additionally, Simmons’s DNA was found on the gun’s trigger, along with DNA from at least one other unidentified person. And when shown the gun recovered from Simmons’s room at trial, Cunningham testified that it looked like the Glock firearm that Memphis took from that room and that Simmons later put to Cunningham’s head. 1. Simmons contends that the evidence was insufficient to support his conviction for malice murder because the State failed to produce evidence that Simmons acted with malice toward Walker. Simmons asserts that the evidence at trial showed, at most, that he fired shots intended for Cunningham, with whom he had a prior conflict, and that he shot Walker unintentionally. He asserts that this evidence supported a conviction for felony murder predicated on the aggravated assault on Cunningham, but not a conviction for malice murder. “When evaluating a challenge to the sufficiency of the evidence, we view all of the evidence presented at trial in the light most favorable to the verdict and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.” Jones v. State, 304 Ga. 594, 598 (2018) (citing Jackson v. Virginia, 443 U.S. 307, 318– 19 (1979)). “This Court does not reweigh evidence or resolve conflicts in testimony but rather defers to the jury’s assessment of the weight and credibility of the evidence.” Davis v. State, 316 Ga. 418, 420 (2023) (quotation marks omitted)). Under Georgia law, a person is guilty of malice murder if “he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” OCGA § 16- 5 5-1(a). And malice “may be inferred from evidence of conduct that demonstrates such a reckless disregard for human life as to show an abandoned and malignant heart.” 2 Allaben v. State, 315 Ga. 789, 792-93 (2023) (citation and punctuation omitted). “The issue of whether a killing is intentional and malicious is for the jury to determine from all the facts and circumstances.” Id. at 793. Although there was no evidence at trial that Simmons intended to shoot Walker, the State was not required to prove such intent in order to establish the crime of malice murder in this case, because, as Simmons concedes, there was evidence to support a finding that he intended to shoot Cunningham by firing into his hotel room. In such circumstances, Simmons’s malice murder conviction can be sustained under the doctrine of transferred intent. Under that doctrine, when an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it. Happoldt v. State, 267 Ga. 126, 127 (1996) (quotation marks omitted). In the context of a shooting, “a person who intends to, for example, shoot one person and unintentionally strikes another cannot avoid wrongdoing by claiming that he did not intend to 2 For the crime of malice murder, OCGA § 16-5-1(b) defines express malice as “that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof,” and provides that the requisite “[m]alice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” 6 shoot that victim; his intent is transferred from the person he intended to shoot to the person whom he actually shot.” Harmon v. State, 319 Ga. 259, 266 n.3 (2024). See also Happoldt, 267 Ga. at 127. And this Court recognized as early as 1904 in Chelsey v. State, 121 Ga. 340, 343 (1904), that the law precludes a defendant charged with murder “from . . . excusing himself, when [his] unlawful act strikes down an unintended victim. The original malice is transferred from the one against whom it was entertained to him who actually suffered the consequences of the felonious act.” Therefore, under the doctrine of transferred intent, it is irrelevant whether Simmons intended to shoot Walker or only intended to shoot at Cunningham. See Coe v. State, 293 Ga. 233, 235 (2013). Cf. Hendricks v. State, 290 Ga. 238, 240 (2011) (holding that evidence that defendant continued to fire into a crowd through which his intended victim sought escape made it irrelevant whether the defendant sought to shoot his intended murder victim or the victims of his aggravated assault). Because Simmons’s intent to shoot Cunningham transferred to Walker and the evidence otherwise supported the elements of malice murder, we affirm Simmons’s conviction on that count. 2. Simmons argues that the trial court abused its discretion in admitting evidence that linked Simmons’s Glock pistol to the 2021 “shots fired” incident (the “2021 incident”) because the State failed to establish a proper purpose under Rule 404(b) for the admission of the evidence. He contends evidence regarding the 2021 incident was impermissible propensity evidence, that its probative value was marginal and cumulative, and that its prejudicial impact was substantial. However, as the State correctly argues, Simmons affirmatively waived his right to raise this claim of error on appeal because he conceded at trial that this 7 evidence was admissible. The trial court held a Rule 404(b) hearing on the admission of this evidence on the second day of trial after voir dire concluded but before testimony began. The State proffered the evidence for purposes of showing identity and presented testimony from a Gwinnett County Police lieutenant describing the 2021 incident. Following that testimony, Simmons’s trial attorney said with respect to the 2021 incident, “we will concede” to its admission at trial, stating that he was “satisfied” as to its admissibility. In ruling that the evidence was admissible, the trial court acknowledged the defense’s concession and further ruled that the evidence met the Rule 404(b) standard for admissibility on the issue of identity. We conclude, therefore, that Simmons affirmatively waived his right to raise this issue on appeal, and we need not address the merits of his arguments. See Heade v. State, 312 Ga. 19, 28 (2021) (holding that defendant affirmatively waived claim of error in admission of other acts evidence where he conceded that the evidence was admissible); Bell v. State, 284 Ga. 790, 795 (2009) (determining that defendant waived objection to admissibility of evidence where his counsel stated at trial that he had “no problem” with the trial court’s “taking [the evidence] into consideration”). 3. Simmons further contends that the trial court erred in charging the jury on “prior difficulties” between Simmons and Walker despite there being no evidence of “direct interaction, conflict, or hostility between them.” Rather, the only evidence of prior difficulties concerned difficulties between Simmons and Cunningham. Simmons asserts that the instruction improperly “invited the jury to impute third-party animosity to Walker” and gave undue weight to Cunningham’s testimony. 8  The pretrial Rule 404(b) hearing also addressed the admissibility of evidence regarding the earlier incident in which Cunningham and Memphis visited Simmons’s room and Simmons later confronted Cunningham and put a gun to his head (the “prior confrontation”). After Cunningham testified about the prior confrontation and Simmons’s counsel was given the opportunity to cross-examine him, counsel conceded that the evidence was admissible as a prior difficulty. The trial court also independently determined that the State met its burden of showing that the evidence was intrinsic, and, alternatively, found that the evidence was properly admissible under Rule 404(b) for purposes of showing motive and opportunity. In its final charge to the jury, the trial judge gave the following instruction on the issue of prior difficulties: Evidence of prior difficulties between the defendant and the alleged victim has been admitted for the sole purpose of illustrating, if it does, the state of feeling between the defendant and the alleged victim. Whether this evidence illustrates such matters is a matter solely for you, the jury, to determine. But you are not to consider such evidence for any other purpose. The trial court gave counsel the opportunity to review the court’s proposed instructions, including the charge on prior difficulties before the charge was given, and defense counsel informed the trial court that he was “satisfied” with the proposed charges, describing them as “all okay.” Defense counsel made no exceptions to the jury charge after it was given. Because Simmons raised no objection to the charge he now contests, our review of his argument on appeal is limited to plain 9 error. See OCGA § 17-8-58(b). To show plain error, [Simmons] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings. Thompson v. State, 320 Ga. 52, 58–59 (2024). See also State v. Kelly, 290 Ga. 29, 33 (2011). “Satisfying . . . this standard is difficult, as it should be. This Court does not have to analyze all elements of the plain-error test where an appellant fails to establish one of them.” Stitts v. State, 323 Ga. 109, 114 (2025). We conclude that Simmons has failed to show any clear and obvious error in the trial court’s instruction on prior difficulties. The charged crimes in this case involved two victims, Walker and Cunningham. Count 6 of the indictment charged Simmons with an aggravated assault on Cunningham by shooting a handgun into his hotel room. Simmons conceded at trial that evidence of the prior confrontation between Simmons and Cunningham was admissible as a prior difficulty, and he acknowledged in his appellate brief that evidence of a prior difficulty between Simmons and Cunningham was presented at trial. We conclude, therefore, that this evidence authorized a jury charge on prior difficulties. See Williams v. State, 316 Ga. 304, 311 (2023) (acknowledging that only “slight evidence” supporting the theory of a jury charge is sufficient to require giving a jury instruction). Moreover, the trial court’s charge was consistent with Georgia’s pattern jury charge on the issue. See Georgia Suggested Pattern Jury Instructions, Criminal Cases, § 1.34.20. And 10 Simmons has pointed to no binding legal authority holding that a trial court errs in giving a pattern jury charge on prior difficulties when the evidence supported it, and we have found none. See Sconyers v. State, 318 Ga. 855, 862 (2024) (holding that the defendant failed to show plain error with regard to the trial court’s pattern charge on prior difficulties, in part, because the defendant “pointed to no controlling precedent holding that a trial court erred in connection with the pattern charge on prior difficulties”). Nor has Simmons identified any controlling authority dictating that a trial court’s instruction on this issue should be different in cases of multiple victims. Cf. Chester v. State, 267 Ga. 9, 12 (2) (1996) (holding that a trial court is not required to specifically point out particular evidence to which an instruction applies). See also Collins v. State, 312 Ga. 727, 743 n.15 (2021) (“[A] trial court is not required, even after request, to specifically point out particular evidence in behalf of the defendants which the jury should specially consider” (quotation marks omitted)). Therefore, because the instruction on prior difficulties “did not involve a clear departure from a settled legal rule,” it was not plain error. McKibbins v. State, 293 Ga. 843, 854 (2013). See also Thompson, 320 Ga. at 59 (holding that defendant did not establish plain error when he failed to point to any legal authority or precedent showing that a trial court errs in instructing the jury on prior-bad-acts evidence and prior-difficulties evidence on the same piece of evidence). 4. Simmons also asserts that the trial court erred in charging the jury that “for aggravated assault, the State must prove that the defendant assaulted another person with intent to murder,” because Simmons was not charged with assault with intent to murder under OCGA § 16-5-21(a)(1). Instead, he was 11 charged with assault with a deadly weapon under OCGA § 16-5- 21(a)(2). But Simmons, in fact, requested the jury instruction of which he now complains in his written pretrial requests to charge, and he subsequently raised no objection to the trial court’s proposed jury instructions or to the charge as given, which both included the requested charge. Thus, any review of this enumeration would be limited to plain error. See OCGA § 17-8- 58(b). We note first that the charges of aggravated assault of Walker and the felony murder charges based on aggravated assault were either merged into Simmon’s malice murder conviction or vacated by operation of law. Accordingly, Simmons’s claim of error related to a jury instruction on aggravated assault is moot as to those charges. See Haywood v. State, 324 Ga. 370, 373 (2026); Snipes v. State, 309 Ga. 785, 790 n.4 (2020). And although Simmons was charged with and convicted of aggravated assault with regard to Cunningham, he cannot establish plain error, because to do so, Simmons must demonstrate, among other things, that that the trial court committed a legal error that “was not affirmatively waived.” Chambliss v. State, 318 Ga. 161,165 (2023) (quotation marks omitted). Therefore, “[i]n order for this Court to review the jury charge for plain error, the accused must not have affirmatively waived the alleged error or defect,” Faust v. State, 302 Ga. 211, 215 (2017) (quotation marks omitted), which means that “the appellant’s argument that the trial court deviated from a legal rule must not have been intentionally relinquished or abandoned by the appellant.” Gines v. State, 324 Ga. 46, 63 (2026) (cleaned up). This Court has previously determined that where, as here, a defendant requested the particular instruction about which he 12 complains on appeal and raised no objection at trial when it was given, the defendant affirmatively waived any right to assert error regarding the charge. 3 See Williams v. State, 299 Ga. 447, 449 (2016). Cf. Jackson v. State, 318 Ga. 393, 406 (2024) (holding that where defendant withdrew his request to a charge, he affirmatively waived any right to that charge and thus did not establish plain error); Ingram v. State, 290 Ga. 500, 503–504 (2012) (finding waiver where defendant complained on appeal about failure to give a jury instruction that defendant had opposed at trial). Therefore, because Simmons cannot show plain error, this enumeration fails. Judgment affirmed. All the Justices concur, except Warren, P.J., not participating. 3 We note the trial court also gave a charge on aggravated assault with a deadly weapon, the charge for which Simmons was indicted. 13