Ellington, Presiding Judge.A Hall County jury found Filberto Aguirre-Gomez guilty of two counts of reckless conduct, OCGA § 16-5-60 (b), and possession of a firearm during the commission of a felony, OCGA § 16-11-106 (b) (1).[1] Aguirre-Gomez appeals from the order denying his motion for a new trial, contending that his conviction for possession of a firearm during the commission of a felony must be reversed because the trial court’s jury instructions concerning that offense constituted plain error under the circumstances of this case and because the evidence was insufficient to support the conviction. For the following reasons, we reverse this conviction. The State charged Aguirre-Gomez for offenses that arose from a fight that broke out on a December night in 2015 while his girlfriend was packing her belongings to move out of the home that they shared. Three of the girlfriend’s friends fought with Aguirre-Gomez, kicking and punching him, and he fired two or three “warning shots” at them to scare them away. As the friends fled, Aguirre-Gomez briefly followed after them in his truck, firing one more shot. This final shot injured one of the people with whom he had fought. The State returned a three-count indictment against Aguirre-Gomez, charging him with two counts of aggravated assault (each against the same victim) and possession of a firearm during the commission of “a felony against the person of another; to wit: Aggravated Assault[.]” The jury returned a verdict finding Aguirre-Gomez guilty of two counts of reckless conduct (lesser-included offenses of aggravated assault) and possession of a firearm during the commission of a felony. 1. Aguirre-Gomez argues that his firearm possession charge must be reversed because the jury was not properly instructed. Specifically, he argues that, because the jury was not informed that reckless conduct is a misdemeanor,[2] it could have mistakenly inferred that reckless conduct would suffice as the predicate felony for the firearm possession charge. For the following reasons, we agree.Although Aguirre-Gomez’s trial counsel suggested at the charge conference that the trial court should inform the jury that reckless conduct is a misdemeanor, he did not object to the jury charge that the trial court eventually gave. Our Supreme Court has explained the limits of our appellate review in this circumstance:Because an objection voiced at the charge conference does not preserve objections to the charge as subsequently given, the failure to object to the charge as given precludes appellate review unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Despite the lack of objection below, the omission of the jury instruction . . . was raised on motion for new trial and enumerated as error and argued on appeal in this case. Consequently, we will review the failure to [give the requested charge], but we review only for plain error, meaning an error that is obvious, that likely affected the outcome of the proceedings, and that seriously affects the fairness, integrity or public reputation of judicial proceedings.
