We granted the State’s interlocutory appeal, in which it challenges the grant of a new trial to appellee Lonnie Kelly as the result of the finding of a fatal omission in the jury charge, to address 1 the circumstances under which an appellate court may review alleged jury instruction errors to which no objection was raised at trial, see OCGA § 17-8-58; and 2 assuming such review was appropriate in this case, whether the trial court correctly held that the omission in the jury charge here constituted plain error. We conclude that, while the trial court did properly conduct a plain error review of the unobjected-to jury charge, the court erred in holding that the omission in the charge did in fact constitute plain error. Accordingly, we reverse and remand. In August 2007, Kelly was convicted of felony murder and four other charges in connection with the December 2003 death of Warren Jacobs and sentenced to life imprisonment plus concurrent terms of fifteen and five years. The felony murder count charged Kelly with causing the victim’s death during the commission of the felony of theft by receiving stolen property. The other counts included 1 first degree vehicular homicide based on hit and run; 2 first degree vehicular homicide based on reckless driving; 3 theft by receiving stolen property; and 4 hit and run. On motion for new trial, a different trial judge held that the trial court had failed to adequately instruct the jury regarding the requisite dangerousness of the predicate felony, see Ford v. State , 262 Ga. 602 1 423 SE2d 255 1992 to support felony murder conviction, predicate felony must either be dangerous per se or create foreseeable risk of death under the attendant circumstances, and that such omission constituted plain error, mandating a new trial.
The felony murder count of the indictment charged, in pertinent part, the said accused . . . did unlawfully during the commission of a felony, to wit: theft by receiving stolen property auto, cause the death of Warren Jacobs, a human being, by driving a vehicle on a public highway after sunset without headlights at a high rate of speed; contrary to the laws of said State, the good order, peace and dignity thereof. Likewise, the vehicular homicide by reckless driving count was based on “driving a vehicle on a public highway after sunset, without headlights, at a high rate of speed.” All the counts of the indictment were read to the jury at the outset of trial.
