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Edgecomb v. State

The trial court improperly instructed the jury on the unindicted offense of violating a family violence order as a lesser included offense of the charged crime of aggravated stalking.

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Following a jury trial, Benjamin Edgecomb appeals from his conviction of violating a family violence order.1 He contends that the trial court erred by instructing the jury on that offense as a lesser included offense of aggravated stalking, for which he was indicted. Because the trial court incorrectly instructed the jury on the unindicted offense, we reverse.

Construed in favor of the verdict,2 the evidence shows that in 2000, Edgecomb married the victim, and in 2010, the couple became divorced. After some difficulties with Edgecomb, his ex-wife petitioned for and obtained a “Stalking Twelve Month Protective Order,” pursuant to OCGA § 16-5-94. The order enjoined Edgecomb from approaching within 500 yards of the ex-wife or her residence. Thereafter, Edgecomb was observed on several occasions violating the order by driving past the ex-wife’s residence, sometimes slowly. On one occasion, a police officer observed the violation, and after confirming Edgecomb’s identity and awareness of the protective order, the police officer arrested Edgecomb.

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