Milner v. State, 678 S.E.2d 563 (Ga. Ct. App. 2009). · Go Syfert
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Milner v. State, 678 S.E.2d 563 (Ga. Ct. App. 2009). Cases Citing This Book View Copy Cite
32 citation events (32 in the last 25 years) across 1 distinct court.
Strongest positive: Clayton Louis Crabbe v. State (gactapp, 2025-09-30)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Clayton Louis Crabbe v. State
Ga. Ct. App. · 2025 · confidence medium
Here, the jury was certainly instructed that the State was required to prove every essential element of the crime as alleged, and the jury was read the language of the indictment more than once—including after it asked whether intent for burglary could be formed “after entering the unit.” But in answering the jury’s question in the affirmative, the trial court did not instruct that it was precluded from considering this alternative method when Crabbe’s indictment alleged that intent was formed before entry.17 Thus, unlike in Wood, the trial court’s extraneous instruction 15 Id. 16 …
examined Cited as authority (rule) Smith v. State (3×)
Ga. Ct. App. · 2011 · confidence medium
However, the colloquy between the trial court and counsel indicates the trial court’s specific response to the questions, and neither party contests the substance of that response on appeal. 11 Although Smith failed to object to the jury instructions, including the response to the jury’s questions, “the jury charge constitutes plain error which affects substantial rights of the defendant.” (Citation and punctuation omitted.) Milner v. State, 297 Ga. App. 859, 859, n. 1 ( 678 SE2d 563 ) (2009).
cited Cited as authority (rule) Judice v. State
Ga. Ct. App. · 2011 · confidence medium
Milner v. State, 297 Ga. App. 859, 859 (1) ( 678 SE2d 563 ) (2009) (punctuation omitted).
discussed Cited as authority (rule) Judice v. State
Ga. Ct. App. · 2011 · confidence medium
Patrick Swayze's dirty dancing, are inevitably designed to sexually arouse or gratify"). [13] See, e.g., Cardenas v. State, 282 Ga.App. 473, 475 (1), 638 S.E.2d 866 (2006) (holding that the jury was authorized to conclude that under the circumstances, the kiss was an "immoral or indecent act" done "with the intent to arouse or satisfy [the defendant's] sexual desires." (punctuation omitted)); Arnold v. State, 249 Ga.App. 156, 158 (1)(a), 545 S.E.2d 312 (2001) (holding that exposing one's sexual organs, even though the child does not actually see them, is sufficient evidence to support a defend…
discussed Cited "see" Craft v. State (2×)
Ga. Ct. App. · 2011 · signal: see · confidence high
See Linson v. State, 287 Ga. 881, 883-884 (2) ( 700 SE2d 394 ) (2010). 30 Paul v. State, 272 Ga. 845, 848 (1) ( 537 SE2d 58 ) (2000) (citation and punctuation omitted) (noting that a judge’s display of “extreme anxiety” could be interpreted by the jury as an expression of its opinion on the issues to be decided in the case), overruled in part on other grounds by Ledford v. State, 289 Ga. 70, 84 (14) ( 709 SE2d 239 ) (2011). 31 See Division 3, supra. 32 297 Ga. App. 859 ( 678 SE2d 563 ) (2009). 33 Id. at 860 (1). 34 Id. 35 Id. 36 Id.
discussed Cited "see" Martin v. State (2×)
Ga. Ct. App. · 2010 · signal: see · confidence high
See Milner v. State, 297 Ga. App. 859, n. 1 ( 678 SE2d 563 ) (2009); OCGA § 17-8-58 (b). 2 Milner, supra, in which we held that the jury charge on terroristic threats violated the defendant’s due process rights, is distinguishable.
discussed Cited "see, e.g." Quintavious Seals v. State (2×)
Ga. Ct. App. · 2021 · signal: compare · confidence low
Compare Milner v. State, 297 Ga. App. 859, 860-861 (1) ( 678 SE2d 563 ) (2009) (conviction reversed because trial court gave an improper charge for a second time during a recharge and failed to give limiting instructions ensuring that the jury would find defendant guilty of terroristic threats in specific manner charged in indictment). 9 The indictment tracked the language of OCGA § 16-10-93 (a), and the trial court instructed the jury on the influencing a witness charge by reading the language of OCGA § 16-10-93 (a).
discussed Cited "see, e.g." Bolden v. the State (2×)
Ga. Ct. App. · 2016 · signal: compare · confidence medium
Compare Smith, 310 Ga. App. at 422 (1) (finding recharge insufficient where the trial court simply referred the jury to the original charge and the indictment without any further limiting or remedial instruction), Milner v. State, 297 Ga. App. 859, 860-61 (1) ( 678 SE2d 563 ) (2009) (recharge referred back to indictment, but did not give a limiting instruction to ensure *658 that the jury would find the defendant guilty of the crime as specifically charged in the indictment) with Wright v. State, 327 Ga. App. 451, 453 ( 757 SE2d 890 ) (2014) (finding lack of jury confusion key in rejecting cha…
discussed Cited "see, e.g." Alan Scott Hobbs v. State (2×)
Ga. Ct. App. · 2015 · signal: compare · confidence low
Compare Milner v. State, 297 Ga. App. 859, 860-861 (1) ( 678 SE2d 563 ) (2009) (conviction reversed where court failed to give limiting instructions ensuring that the jury would find defendant guilty of terroristic threats in specific manner charged in indictment). 14 Schneider, supra at 508 (2) (citations and punctuation omitted); see also Martin, supra. 15 See OCGA § 16-11-37 (c) (pertinently providing for punishment of imprisonment for one through five years for terroristic threats); OCGA § 16-1-3 (5) (defining “[f]elony” as “a crime punishable by death, by imprisonment for life, or…
discussed Cited "see, e.g." Hobbs v. State (2×)
Ga. Ct. App. · 2015 · signal: compare · confidence low
Compare Milner v. State, 297 Ga. App. 859, 860-861 (1) ( 678 SE2d 563 ) (2009) (conviction reversed where court failed to give limiting instructions ensuring that the jury would find defendant guilty of terroristic threats in specific manner charged in indictment).
discussed Cited "see, e.g." Andra Easter v. State (2×)
Ga. Ct. App. · 2014 · signal: see also · confidence medium
See also Milner v. State, 297 Ga. App. 859, 860-861 (1) ( 678 SE2d 563 ) (2009) (noting that the trial court’s original error in instructing the jury that the 11 crime could be committed by a method not alleged in the indictment “was aggravated by the court’s recharge to the jury” in which it repeated its error) (citation omitted).
discussed Cited "see, e.g." Easter v. State (2×)
Ga. Ct. App. · 2014 · signal: see also · confidence medium
See also Milner v. State, 297 Ga. App. 859, 860-861 (1) ( 678 SE2d 563 ) (2009) (noting that the trial court’s original error in instructing the jury that the crime could be committed by a method not alleged in the indictment “was aggravated by the court’s recharge to the jury” in which it repeated its error) (citation omitted).
discussed Cited "see, e.g." Schneider v. State (2×)
Ga. Ct. App. · 2011 · signal: compare · confidence medium
Compare Milner v. State, 297 Ga. App. 859, 860-861 (1) ( 678 SE2d 563 ) (2009) (court failed to give a limiting instruction ensuring that the jury would find defendant guilty of terroristic threats in specific manner charged in indictment).
Retrieving the full opinion text from the archive…
Milner
v.
the State
A09A0556.
Court of Appeals of Georgia.
May 14, 2009.
678 S.E.2d 563
Gerard B. Kleinrock, for appellant., Gwendolyn Keyes Fleming, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.
Smith, Phipps, Bernes.
Cited by 14 opinions  |  Published
SMITH, Presiding Judge.

George Milner was indicted for rape and terroristic threats. A jury acquitted Milner of rape, but found him guilty of terroristic threats. Following the denial of his amended motion for new trial, Milner appeals, contending that the trial court erred in its instructions to the jury and that his trial counsel was ineffective. We agree that the trial court erred in its instructions to the jury, and we therefore reverse.

Construed in favor of the verdict, the evidence revealed that Milner and the victim dated for three months, but that the victim ended the relationship when Milner became too controlling. After the break-up, Milner picked the victim’s door locks and entered her home without permission. He also left several threatening messages on her answering machine. The victim testified that Milner threatened to “whip [her] ass” and “bury” her or kill her. The victim testified further that she was afraid Milner would cause her bodily harm.

1. Milner argues that the trial court erred in instructing the jury that it could convict him of committing terroristic threats in a manner not alleged in the indictment. [1] He contends that the instruction authorized the jury to convict him for “any threat to commit any violence” rather than for a threat to commit the crime of murder as alleged in the indictment.

Due process requires that, in criminal cases, jury instructions must be tailored to fit the allegations in the indictment and the evidence admitted at trial. If a jury charge recites the entire definition of a crime and the indictment does not, there is a reasonable probability that the deviation violated the accused’s due process rights by resulting in a conviction of a crime committed in a manner not charged in[*860] the indictment. Thus, this court has reversed convictions where the indictment specified that the offense was committed one way and the court charged the jury that it could be committed in two ways without giving a limiting instruction.

(Citations, punctuation and footnote omitted.) Hopkins v. State, 255 Ga. App. 202, 205 (2) (564 SE2d 805) (2002).

The indictment alleged that Milner “did threaten to commit the crime of murder, a crime of violence, with the purpose of terrorizing [the victim], the person threatened.” But the court instructed the jury on the relevant language of OCGA § 16-11-37 (a): “a person commits the offense of terroristic threats when he or she threatens to commit any violence with the purpose of terrorizing another.” [2] During deliberations, the jury asked for a recharge on the definition of terroristic threats. The court gave an instruction nearly identical to its initial charge: “A person commits the offense of terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another.”

The court twice instructed the jury that terroristic threats involves “any violence” or “any crime of violence.” The evidence presented at trial showed that Milner threatened both to hurt the victim and to “bury” or kill her. It is therefore probable that the jury convicted Milner of threatening the victim with bodily harm.

The State points out that the trial court also instructed the jury that it would be authorized to find Milner guilty if it found from the evidence that he committed “the offenses or any of them charged in the indictment,” and further instructed: “if you should find beyond a reasonable doubt that the defendant is guilty of terroristic threats as charged in the indictment, you again would be authorized to return a verdict of guilty.” The court, however, did not give a limiting instruction to ensure that the jury would find Milner guilty of terroristic threats in the specific manner charged in the indictment. See Hall v. Wheeling, 282 Ga. 86, 87 (1) (646 SE2d 236) (2007). Nor did the court instruct the jury not to consider terroristic threats as having occurred in another manner. See Chapman v. State, 273 Ga. 865, 868-869 (2) (548 SE2d 278) (2001). Under these circumstances, without a remedial instruction, it is probable that the jury found Milner guilty of committing the act of terroristic threats in a manner not charged in the indictment, especially here where any confusion was aggravated by the court’s recharge to the jury instructing that[*861] the crime of terroristic threats involves any crime of violence. See, e.g., Hopkins, supra, 255 Ga. App. at 205-206 (2).

Decided May 14, 2009. Gerard B. Kleinrock, for appellant. Gwendolyn Keyes Fleming, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

Milner’s right to due process was violated due to a fatal variance between the proof at trial and the indictment. See Hall, supra, 282 Ga. at 87 (1). He is therefore entitled to a new trial.

2. In light of our holding in Division 1, Milner’s remaining enumeration is rendered moot.

Judgment reversed.

Phipps and Bernes, JJ., concur.
1

As the State points out, under OCGA § 17-8-58 (b), the failure to object to the jury instruction precludes appellate review of the charge. But here, the jury charge constitutes “plain error which affects substantial rights of the [defendant].” Id.; see Taitón v. State, 254 Ga. App. Ill, 112 (1), n. 2 (561 SE2d 139) (2002) (if probable that jury convicted defendant of offense in manner not averred in indictment, error sufficiently egregious to preclude finding of waiver).

2

OCGA § 16-11-37 (a) provides that “[a] person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence . . . with the purpose of terrorizing another.”