giving of a jury instruction in Georgia

2007“The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.” (Citation omitted.) Harwell v. State, 270 Ga. 765, 766 (1) ( 512 SE2d 892 ) (1999).

2007“The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.” (Citation omitted.) Harwell v. State, 270 Ga. 765, 766 (1) ( 512 SE2d 892 ) (1999).

2014In order to show plain error in the giving of a jury instruction, a defendant must show “that the . . . charge was erroneous, the error was obvious, the . . . charge likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Johnson v. State, 295 Ga. 615, 617-618 (2) ( 759 SE2d 837 ) (2014) (citation omitted).

2014In order to show plain error in the giving of a jury instruction, a defendant must show “that the . . . charge was erroneous, the error was obvious, the . . . charge likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Johnson v. State, 295 Ga. 615, 617-618 (2) ( 759 SE2d 837 ) (2014) (citation omitted).

2026See Bowman v. State, 317 Ga. 457, 463 (2023) (“Jury instructions must tell the jury the law of the case fully and fairly and are authorized if supported by slight evidence.” (citations and punctuation omitted)).

2026See Bowman v. State, 317 Ga. 457, 463 (2023) (“Jury instructions must tell the jury the law of the case fully and fairly and are authorized if supported by slight evidence.” (citations and punctuation omitted)).

2022See Hutchins v. State, 326 Ga. App. 250, 255 (1), 259 (3) ( 756 SE2d 347 ) (2014) (finding that the record contained some evidence which would support a deliberate ignorance charge where there was circumstantial evidence that the defendant was aware another person was manufacturing methamphetamine, yet permitted her child to live in that person’s home while the activity was occurring, but the defendant claimed to be unaware of the activity); Able v. State, 312 Ga. App. 252, 254 (1), 259 (3) (a) ( 718 SE2d 96 ) (2011) (holding that circumstantial evidence, 8 sufficient to show the defendant kne

2022See Hutchins v. State, 326 Ga. App. 250, 255 (1), 259 (3) ( 756 SE2d 347 ) (2014) (finding that the record contained some evidence which would support a deliberate ignorance charge where there was circumstantial evidence that the defendant was aware another person was manufacturing methamphetamine, yet permitted her child to live in that person’s home while the activity was occurring, but the defendant claimed to be unaware of the activity); Able v. State, 312 Ga. App. 252, 254 (1), 259 (3) (a) ( 718 SE2d 96 ) (2011) (holding that circumstantial evidence, 8 sufficient to show the defendant kne

2022See Hutchins v. State, 326 Ga. App. 250, 255 (1), 259 (3) ( 756 SE2d 347 ) (2014) (finding that the record contained some evidence which would support a deliberate ignorance charge where there was circumstantial evidence that the defendant was aware another person was manufacturing methamphetamine, yet permitted her child to live in that person’s home while the activity was occurring, but the defendant claimed to be unaware of the activity); Able v. State, 312 Ga. App. 252, 254 (1), 259 (3) (a) ( 718 SE2d 96 ) (2011) (holding that circumstantial evidence, 8 sufficient to show the defendant kne

2022See Hutchins v. State, 326 Ga. App. 250, 255 (1), 259 (3) ( 756 SE2d 347 ) (2014) (finding that the record contained some evidence which would support a deliberate ignorance charge where there was circumstantial evidence that the defendant was aware another person was manufacturing methamphetamine, yet permitted her child to live in that person’s home while the activity was occurring, but the defendant claimed to be unaware of the activity); Able v. State, 312 Ga. App. 252, 254 (1), 259 (3) (a) ( 718 SE2d 96 ) (2011) (holding that circumstantial evidence, 8 sufficient to show the defendant kne

2021See Pippen v. State, 299 Ga. 710, 713 (2) (b) (791 SE2d 795) (2016) (“We have held that the giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.” (citation and punctuation omitted)).

2021See Pippen v. State, 299 Ga. 710, 713 (2) (b) (791 SE2d 795) (2016) (“We have held that the giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.” (citation and punctuation omitted)).

2016(Citation omitted; emphasis supplied.) Schneider v. State, 312 Ga. App. 504, 507 (2) ( 718 SE2d 833 ) (2011).

2016(Citation omitted; emphasis supplied.) Schneider v. State, 312 Ga. App. 504, 507 (2) ( 718 SE2d 833 ) (2011).

2016Smith v. State, 310 Ga. App. 418, 421 (1) ( 714 SE2d 51 ) (2011) (citation and punctuation omitted).

2016Smith v. State, 310 Ga. App. 418, 421 (1) ( 714 SE2d 51 ) (2011) (citation and punctuation omitted).

2014N., we find no due-process violation in this instance because “[w]hile instructing the jury that a crime can be committed in a manner different from that charged in the indictment can constitute reversible error, 21 Machado v. State, 300 Ga. App. 459, 462 (5) ( 685 SE2d 428 ) (2009) (punctuation omitted). 22 Id. (punctuation omitted). 13 a reversal is not mandated [when], as here, the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.”23 And indeed, in the case sub judice, the trial court instructed the jury that the Stat

2014N., we find no due-process violation in this instance because “[w]hile instructing the jury that a crime can be committed in a manner different from that charged in the indictment can constitute reversible error, 21 Machado v. State, 300 Ga. App. 459, 462 (5) ( 685 SE2d 428 ) (2009) (punctuation omitted). 22 Id. (punctuation omitted). 13 a reversal is not mandated [when], as here, the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.”23 And indeed, in the case sub judice, the trial court instructed the jury that the Stat

2012(Citations and punctuation omitted.) Wallin v. State, 305 Ga. App. 663, 664 (1) ( 700 SE2d 837 ) (2010).

2012(Citations and punctuation omitted.) Wallin v. State, 305 Ga. App. 663, 664 (1) ( 700 SE2d 837 ) (2010).

2011While slight evidence will support the giving of a jury instruction, Lewis v. State, 292 Ga. App. 257, 264 (2) ( 663 SE2d 721 ) (2008), there was no evidence in this case to support an instruction on defense of habitation pursuant to OCGA § 16-3-23.

2011While slight evidence will support the giving of a jury instruction, Lewis v. State, 292 Ga. App. 257, 264 (2) ( 663 SE2d 721 ) (2008), there was no evidence in this case to support an instruction on defense of habitation pursuant to OCGA § 16-3-23.

2011Timing is critical to the application of the defense of habitation: “Where there is no evidence that the victim was attempting to enter or attack the habitation at the time he was injured by the defendant, the defense of habitation is not available.” (Emphasis supplied.) Coleman v. State, 286 Ga. 291, 298 (6) ( 687 SE2d 427 ) (2009).

2011Timing is critical to the application of the defense of habitation: “Where there is no evidence that the victim was attempting to enter or attack the habitation at the time he was injured by the defendant, the defense of habitation is not available.” (Emphasis supplied.) Coleman v. State, 286 Ga. 291, 298 (6) ( 687 SE2d 427 ) (2009).

2009Because, as a matter of law, the facts of this case do not support a justification defense based on the defense of third persons or the giving of a jury instruction in that regard, it cannot be said that "there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's [failure to pursue such a defense or request such an instruction]." Brogdon v. State, 255 Ga. 64, 68 (3), 335 S.E.2d 383 (1985).

2009Because, as a matter of law, the facts of this case do not support a justification defense based on the defense of third persons or the giving of a jury instruction in that regard, it cannot be said that "there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel's [failure to pursue such a defense or request such an instruction]." Brogdon v. State, 255 Ga. 64, 68 (3), 335 S.E.2d 383 (1985).

2003See also Stephens v. State, 255 Ga. App. 680, 684 (6) ( 569 SE2d 250 ) (2002).

2003See also Stephens v. State, 255 Ga. App. 680, 684 (6) ( 569 SE2d 250 ) (2002).

2003“The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.” (Footnote omitted.) Boone v. State, 250 Ga. App. 133, 144 (16) ( 549 SE2d 713 ) (2001).

2003“The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.” (Footnote omitted.) Boone v. State, 250 Ga. App. 133, 144 (16) ( 549 SE2d 713 ) (2001).