Aggravated Assault Forecloses “Unlawful-Act” Involuntary Manslaughter; Withdrawing a “Lawful-Act” Request Waives Plain-Error Review

Case: Scott v. State, Supreme Court of Georgia (Decided May 19, 2026)

1. Introduction

Christopher Scott was convicted in Chatham County of the malice murder of his wife, Tiffany Scott, and possession of a firearm during the commission of a felony. The appeal centered on jury-instruction law: whether the trial court was required to instruct on involuntary manslaughter as a lesser offense—either (i) “unlawful act” involuntary manslaughter based on the misdemeanors of reckless conduct and pointing a pistol, or (ii) “lawful act” involuntary manslaughter (a lawful act done in an unlawful manner).

The Supreme Court of Georgia affirmed, holding that the evidence showed aggravated assault (a felony), which cannot supply the “unlawful act” predicate under OCGA § 16-5-3(a), and further holding that Scott could not obtain plain-error review of a “lawful act” involuntary manslaughter instruction he had affirmatively withdrawn.

2. Summary of the Opinion

  • No error in refusing “unlawful act” involuntary manslaughter instructions premised on reckless conduct or pointing a pistol, because the trial evidence established conduct amounting to aggravated assault, a felony, and OCGA § 16-5-3(a) excludes felonies as the “unlawful act.”
  • No plain error in failing to give a “lawful act” involuntary manslaughter instruction under OCGA § 16-5-3(b), because Scott withdrew that request at the charge conference, thereby affirmatively waiving the issue.
  • Convictions and sentences were affirmed.

3. Analysis

A. Precedents Cited

Depriest v. State, 319 Ga. 874 (2024)

Cited for the procedural point that a felony murder count is “vacated by operation of law” when the defendant is convicted and sentenced for malice murder of the same victim. The case frames the sentencing/merger background but does not drive the instruction analysis.

Miranda v. Arizona, 384 US 436 (1966)

Mentioned to note that Scott waived Miranda rights before giving a custodial statement. It is contextual, not central to the jury-charge holdings.

McIver v. State, 314 Ga. 109 (2022)

Scott relied on McIver for the “slight evidence” principle as applied to an “unlawful manner” (OCGA § 16-5-3(b)) instruction. The Court did not reject McIver’s articulation; instead it held Scott could not benefit from it because he withdrew the OCGA § 16-5-3(b) request, triggering waiver and foreclosing plain-error relief.

McIver also appears in the discussion of Manzano v. State—noting Manzano was “disapproved of in part by McIver” (as stated in the opinion), which matters mainly to signal the Court’s careful separation between (i) true “criminal negligence” fact patterns and (ii) scenarios that, on the evidence, rise to aggravated assault.

Moon v. State, 311 Ga. 421 (2021)

Supplies the governing standard: when a defendant requests an “unlawful act” involuntary manslaughter charge as a lesser included offense, the trial court must give it if there is “slight evidence” supporting it. Moon also reinforces the statutory limitation that the underlying “unlawful act” must be “other than a felony” (OCGA § 16-5-3(a)).

Chambliss v. State, 318 Ga. 161 (2023)

This is the opinion’s key doctrinal anchor on two points:

  1. Even if conduct could also be characterized as a misdemeanor, an “unlawful act” involuntary manslaughter instruction is improper where the evidence shows the death was caused by conduct constituting a felony.
  2. On plain error, a defendant must show an error that was not affirmatively waived; waiver defeats plain-error analysis.

Metz v. State, 321 Ga. 402 (2025)

Cited for preservation principles: by requesting an “unlawful act” involuntary manslaughter instruction and objecting to its omission, Scott preserved that specific claim for ordinary review (as opposed to plain-error review).

Manzano v. State, 282 Ga. 557 (2007)

Used as a contrastive example (and flagged as partially disapproved by McIver): a “horseplay” scenario where there was slight evidence of criminal negligence (reckless conduct) because the parties believed the gun was unloaded. The Court distinguished Scott’s case: the record did not support a “criminal negligence” theory on these facts, and the forensic/contact-wound evidence pointed away from an accidental-discharge narrative.

Jones v. State, 289 Ga. 145 (2011)

Provides the crisp rule applied to the facts: “purposefully putting a gun to the fearful victim’s head and pulling the trigger” is aggravated assault, not merely reckless conduct or pointing a pistol, and aggravated assault cannot serve as the non-felony predicate for OCGA § 16-5-3(a).

Savage v. State, 274 Ga. 692 (2002)

Clarifies the boundary between misdemeanor “pointing a pistol” and felony aggravated assault: if the firearm pointing places the victim in reasonable apprehension of immediately receiving a violent injury, the conduct is aggravated assault. This supports the Court’s conclusion that Scott’s conduct fit aggravated assault rather than OCGA § 16-11-102.

Overton v. State, 305 Ga. 597 (2019)

Reinforces how reasonable apprehension can be shown by witness accounts of the victim’s statements immediately before shots are fired (e.g., “Oh, you’re going to shoot me now?”). The Court analogized this to Tiffany’s “shoot me” statement just before the gunshot.

Jackson v. State, 318 Ga. 393 (2024)

Governs the standard of review: absent a proper objection, missing-charge claims are reviewed only for plain error. The Court applied Jackson to route Scott’s “lawful act” theory into plain-error review—then rejected it due to waiver.

B. Legal Reasoning

1. The OCGA § 16-5-3 structure: two kinds of involuntary manslaughter

The Court began by organizing the law around the statute:

  • OCGA § 16-5-3(a) (“unlawful act”): unintentional killing during commission of an unlawful act other than a felony.
  • OCGA § 16-5-3(b) (“lawful act in an unlawful manner”): unintentional killing while performing a lawful act in an unlawful manner likely to cause death or great bodily harm.

2. Why reckless conduct / pointing a pistol did not warrant an OCGA § 16-5-3(a) charge

Scott argued there was “slight evidence” that he “stumbled or slipped” and the gun fired unintentionally. The Court rejected that framing on two independent grounds:

  1. Insufficient evidentiary foundation for the asserted misdemeanors. For “pointing a pistol” under OCGA § 16-11-102, the statute requires that the defendant “intentionally” point or aim a pistol at another. The record (as characterized by the Court) did not supply “even slight evidence” that Scott intentionally aimed; the cross-examination question that a trip-and-discharge was “possible” did not establish the necessary actus reus/mental state for the misdemeanor.
  2. Even if a misdemeanor label were possible, the evidence showed aggravated assault (a felony), which bars OCGA § 16-5-3(a). The Court emphasized the combination of: Scott retrieving the gun during an argument; returning to the garage where Tiffany was; Tiffany’s statement immediately before the shot; and the medical examiner’s testimony that the shot was a contact wound to the front of the head. Under Jones v. State, Savage v. State, and Overton v. State, that evidentiary picture fits aggravated assault, and under OCGA § 16-5-3(a) (as reinforced by Moon and Chambliss), a felony cannot be the “unlawful act” predicate for involuntary manslaughter.

3. Why the OCGA § 16-5-3(b) (“lawful act”) instruction failed under plain error

Scott initially requested a “lawful act in an unlawful manner” instruction but expressly withdrew it at the charge conference, choosing instead to request only an “unlawful act” theory. That withdrawal mattered twice:

  • Preservation: because he did not object to the absence of the OCGA § 16-5-3(b) charge, the claim was limited to plain-error review under Jackson v. State.
  • Waiver defeats plain error: under Chambliss v. State, plain error requires an error “that was not affirmatively waived.” Withdrawing the request was an affirmative waiver, so Scott could not satisfy the threshold requirement for plain error.

C. Impact

  • Instructional gatekeeping where evidence establishes a felony assault. The opinion reinforces a practical rule for trial courts: where the evidence surrounding a shooting (including forensic indicators like a contact wound and contextual evidence of retrieving a firearm during a confrontation) points to aggravated assault, courts should not give an OCGA § 16-5-3(a) involuntary manslaughter instruction premised on misdemeanor alternatives—even if defense counsel can articulate a hypothetical negligence narrative.
  • Strategic charge decisions have appellate consequences. The waiver holding is a cautionary precedent: an explicit withdrawal of a requested instruction is not merely a failure to object—it is affirmative waiver, which blocks plain-error review. This increases the stakes of charge-conference strategy in homicide cases, where counsel may seek to avoid doctrinal inconsistency but later desire the “fallback” of OCGA § 16-5-3(b).
  • Clarifies the misdemeanor/felony boundary in firearm-pointing cases. By leaning on Savage, Overton, and Jones, the Court continues to treat firearm pointing that creates reasonable apprehension (or is accompanied by circumstances suggesting imminent violence) as aggravated assault rather than OCGA § 16-11-102, narrowing the path to misdemeanor-based involuntary manslaughter instructions in domestic shooting contexts.

4. Complex Concepts Simplified

“Slight evidence” (for lesser-included charges)
A very low threshold: if any evidence supports the lesser offense, the defendant is generally entitled to the instruction. But the evidence must actually support the elements of the lesser offense; speculation or a merely “possible” alternative is not enough when the record shows a different, disqualifying predicate (here, a felony).
Involuntary manslaughter—“unlawful act” vs. “lawful act”
Under OCGA § 16-5-3(a), the underlying unlawful act must be a misdemeanor (or non-felony). Under OCGA § 16-5-3(b), the underlying act is lawful, but it is done in an unlawful way (often described as criminal negligence) likely to cause death or great bodily harm.
Why a felony matters (OCGA § 16-5-3(a))
The statute expressly excludes felonies. So if the death was caused while committing a felony (like aggravated assault), the “unlawful act” form of involuntary manslaughter is legally unavailable as a lesser instruction.
Aggravated assault vs. pointing a pistol
“Pointing a pistol” (OCGA § 16-11-102) is a misdemeanor requiring intentional pointing/aiming. Aggravated assault is a felony and is satisfied where the victim is placed in reasonable apprehension of immediate violent injury, or where the assault involves a deadly weapon in circumstances amounting to the felony. The same “pointing” behavior can become aggravated assault when it creates that reasonable apprehension.
Plain error
A limited appellate safety valve for unpreserved issues. It cannot be used to correct issues the defendant affirmatively waived.
Affirmative waiver
Not merely silence—an intentional relinquishment, such as expressly withdrawing a requested jury charge. Once waived, the issue generally cannot be revived on appeal through plain-error doctrine.
“Contact wound” (forensic term)
Indicates the muzzle was against the skin/body when fired. In this opinion, the contact wound supported the conclusion that the shooting fit an aggravated assault framework rather than an accidental, at-a-distance discharge.

5. Conclusion

Scott v. State clarifies two recurring jury-instruction problems in homicide prosecutions. First, OCGA § 16-5-3(a) is unavailable where the proof shows the death was caused by felonious conduct—particularly aggravated assault with a firearm—despite defense efforts to re-describe the conduct as a misdemeanor such as reckless conduct or pointing a pistol. Second, the decision underscores that withdrawing a requested OCGA § 16-5-3(b) instruction is an affirmative waiver that blocks plain-error review. The combined effect is to tighten the doctrinal and procedural channels through which involuntary manslaughter instructions reach Georgia juries in firearm-related killings, and to place heightened importance on charge-conference choices.