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Final Copy 286 Ga. 422

S09A1713. SHIVERS v. THE STATE. Thompson, Justice. Tony Shivers was found guilty by a jury of felony murder and other offenses in connection with the shooting death of Allen Kilgore.1 Shivers appeals from the denial of his motion for new trial, claiming that the jury instruction was defective in two respects. Finding no error, we affirm. Viewed in a light most favorable to the verdict, the evidence established that

The crimes were committed on January 15, 2006. An indictment was returned on June 5, 2006, charging Shivers with malice murder; felony murder while in the commission of an aggravated assault; felony murder while in the commission of the offense of possession of a firearm by a convicted felon; aggravated assault; and possession of a firearm by a convicted felon. Trial commenced on December 18, 2006, and on December 21, 2006, a jury found Shivers guilty of voluntary manslaughter, felony murder (two counts), aggravated assault, and possession of a firearm by a convicted felon. He was sentenced on January 5, 2007, to life imprisonment for felony murder while in commission of the offense of possession of a firearm by a convicted felon. The remaining counts were either vacated by operation of law or merged for purposes of sentencing. See Malcolm v. State, 263 Ga. 369 (5) (434 SE2d 479) (1993). Shivers filed a motion for new trial on February 2, 2007, which he amended on October 30, 2008. The motion for new trial as amended was denied on March 12, 2009. A motion for leave to file an out-of-time appeal was granted on May 28, 2009, and a notice of appeal was filed on June 1, 2009. The case was docketed in this Court on June 30, 2009, and was submitted for a decision on briefs on August 24, 2009.
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Shivers and several others had congregated at the victim's home to drink alcoholic beverages2 and watch football. Shivers and the victim began arguing in the presence of several witnesses. Shivers left the house exclaiming to onlookers that he would kill the victim. About an hour later, several witnesses observed him return to the house, armed with a shotgun. Shivers, a previously convicted felon, entered the house and fired the weapon, killing the victim with a single gunshot to the chest in the presence of the victim's mother and brother. He then fled from the scene in a car. At trial Shivers claimed that he acted in self-defense. He testified that after he argued with the victim, he walked out of the house and remained on the premises for about an hour; he reentered the house to purchase alcohol when he encountered the victim pointing a shotgun at him; Shivers then produced a shotgun which he had concealed during the evening under his clothing, shot the victim, and fled from the scene. 1. The evidence was sufficient for a rational trier of fact to reject Shivers' justification theory and to find him guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d

It was established that alcoholic beverages were being sold illegally on the premises.
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560) (1979). See also Lewis v. State, 283 Ga. 191 (1) (657 SE2d 854) (2008). 2. Shivers asserts that the trial court erred in failing to specifically charge the jury that self-defense may be a defense to the crime of possession of a firearm by a convicted felon. In reviewing a challenge to the trial court's jury instruction, we view the charge as a whole to determine whether the jury was fully and fairly instructed on the law of the case. See Spearman v. State, 267 Ga. 600 (5) (481 SE2d 814) (1997). Here, the court gave an instruction on use of force in self-defense verbatim from the Suggested Pattern Jury Instructions, fully explaining the affirmative defense of justification and the burden on the State to disprove it beyond a reasonable doubt. There is no requirement that the court instruct the law of self-defense separately as to each of the various crimes alleged in the indictment. See generally Holmes v. State, 273 Ga. 644 (3) (543 SE2d 688) (2001). We conclude that the charge, when taken as a whole, adequately and fairly conveyed the correct legal principles concerning self-defense. See Davenport v. State, 283 Ga. 171 (3) (656 SE2d 844) (2008). 3. Shivers also claims that the trial court erred in refusing to give his requested jury charge drawn from Ford v. State, 262 Ga. 602, 603 (1) (423 SE2d 255) (1992), specifically that "[a] status felony, including the possession of a firearm by a
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previously convicted felon, is not inherently dangerous." Ford, a convicted felon, accidentally discharged a firearm while attempting to unload it, unintentionally sending a bullet through the floor striking and killing a person in the apartment below. Ford was convicted in part of felony murder predicated on possession of a firearm by a convicted felon. On appeal, he argued that the evidence of the firearm possession was insufficient to support a felony murder conviction because he did not possess the weapon in a manner that was inherently dangerous or life threatening. The Court agreed, noting that the purpose of the felony murder statute is to "deter the commission of a dangerous or life-threatening felony" and the status offense in that case occurred under circumstances in which no assault or criminal conduct took place. Id. at 603. The Court also acknowledged that "circumstances may well exist under which such a felony may be considered dangerous." Id. Unlike Ford, Shivers intentionally aimed and shot a loaded weapon at the victim (actually using a chair to position it) in a manner that was inherently dangerous. "A felony is inherently dangerous when it is dangerous per se or by its circumstances creates a foreseeable risk of death. [Cit.] Depending on the facts, possession of a firearm by a convicted felon can be an inherently dangerous felony." (Punctuation omitted.) Hines v. State, 276 Ga. 491, 493 (3) (578 SE2d 868) (2003).
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See also Sapp v. State, 284 Ga. 754 (670 SE2d 67) (2008); Metts v. State, 270 Ga. 481 (1) (511 SE2d 508) (1999) (status offense of being a convicted felon in possession of a firearm supports a felony murder conviction where defendant pointed a loaded, cocked gun at a window knowing there was a person on the other side). "In determining whether a felony meets that definition, [a] court does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed." Mosley v. State, 272 Ga. 881, 883 (3) (536 SE2d 150) (2000). As in Metts, supra at 482, "[a]ppellant's possession of the firearm was dangerous and life-threatening, and had `an undeniable connection to the homicide.'" "Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law." Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998). It is not error for the trial court to refuse to give a requested charge that, "`is not legally accurate and adjusted to the evidence.'" Lewis v. State, 269 Ga. App. 94, 96 (2) (603 SE2d 492) (2004). Shivers admitted that he deliberately used the weapon to shoot the victim, but claimed that he did so in self-defense. Thus, his use of the weapon under the circumstances "create[d] a foreseeable risk of death." (Punctuation omitted.) Ford, supra at 603. The only question was whether his conduct was justified because he was acting in self-defense. In contrast to Ford, supra at 603, the
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evidence did not support a finding that the status felony occurred under circumstances in which "no assault or any other criminal conduct" took place. It follows that the requested charge was properly denied. Judgment affirmed. All the Justices concur, except Nahmias, J., who concurs specially as to Division 3. Nahmias, Justice, concurring specially.

I join Divisions 1 and 2 of the Court's opinion, but I concur only in the result as to Division 3. Bad facts, as they say, make bad law. But assuming we are to live with such law, we must apply it properly. I do not believe the majority opinion does so in Division 3. 1. In Ford v. State, 262 Ga. 602 (423 SE2d 255) (1992), this Court decided

that "dangerousness is a prerequisite to the inclusion of a felony as an underlying felony under the felony murder statute of this state." Id. at 602. That statute, OCGA

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