A Butts County jury found Richard Moore guilty beyond a reasonable doubt of involuntary manslaughter, OCGA § 16-5-3 a; aggravated assault, OCGA § 16-5-21 a 2; possession of a firearm during the commission of a felony, OCGA § 16-11-106 b 1; and carrying a pistol without a license, OCGA § 16-11-128.1 He appeals from the denial of his motion for new trial, contending there was insufficient evidence to support the aggravated assault conviction and that the trial court should have vacated his possession of a firearm conviction. Moore also argues that the trial court improperly commented on the evidence, admitted similar transaction evidence, and charged the jury. As explained below, we find that Moore’s firearm conviction under OCGA § 16-11-106 must be vacated. Moore’s remaining enumerations of error present no basis for reversing his convictions, however, so his other convictions are affirmed. Viewed in favor of the jury’s verdict,2 the evidence showed the following relevant facts. At about 1:30 a.m. on the morning of May 29, 2005, 18-year-old Moore went to a party, accompanied by two other teenagers, the victim and a mutual friend, Melissa Black. Moore pulled his car into the driveway, got out of his car, and stood on the driver’s side; the victim and Black stood near the door on the passenger’s side. Several people from the party walked over to Moore’s car and stood on the passenger’s side, talking to the victim and Black. A few minutes later, Moore called the victim a “smart ass.” In response, the victim flicked a lit cigarette toward Moore. The cigarette went through the car’s sun roof and landed on the leather seat on the driver’s side. Moore frantically grabbed the cigarette, then he pulled a .357 revolver out of his car, told the victim, “I’d shoot you over my car, don’t do nothing like that,” cocked the gun, and pointed it directly at the victim. After a moment, Moore uncocked the gun and put it back in the car under the driver’s seat. Someone asked Moore if the gun was loaded, and Moore said yes. None of the eyewitnesses saw Moore unload the gun after that point.
The victim then said something like, “I thought you didn’t pull out a gun unless you were planning on using it” or “I thought you never cocked it without firing it.” Without responding, Moore grabbed the gun, cocked it, stretched his arm over the top of the car so that the gun was only about two feet from the victim, and pointed the gun at the victim. The weapon immediately discharged, and a bullet struck the victim in the chest. An eyewitness testified that he saw Moore pull the trigger and shoot the victim.
