Wallin v. State

A jury instruction, which differs 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." '

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Following a jury trial, Grady Joe Wallin, Jr. was convicted of aggravated assault OCGA § 16-5-21 a 2, two counts of battery OCGA § 16-5-23.1 a, driving on a revoked license OCGA § 40-5-121, operating an unregistered vehicle OCGA § 40-2-8 a, and driving without insurance OCGA § 40-6-10. Wallin contends that the trial court erred in charging the jury on battery and that his counsel provided ineffective assistance in failing to object to the charge. We find there is a reasonable probability that the jury convicted Wallin of committing battery in a manner not averred in the indictment. For this reason, we reverse Wallin’s battery convictions. Otherwise, the judgment of conviction will stand affirmed. Viewed in the light most favorable to the jury’s verdict Drammeh v. State , 285 Ga. App. 545, 546 1 646 SE2d 742 2007, the evidence shows that Wallin stormed into the victim’s residence carrying a three-foot-long post with a bolt protruding from one end. Wallin swung the post repeatedly at the victim, striking him in the head, rib cage, and arm. Wallin then used a thrusting motion to jab the end of the post against the victim’s chest. Eventually, Wallin grabbed the victim and held him face down in a recliner while he choked the victim and hit him with his fist. Wallin also bit the victim.

An officer stopped Wallin as he drove away from the scene. The van Wallin was driving did not have a tag. Nor did Wallin have a valid driver’s license or insurance on the vehicle.

Wallin v. State

A jury instruction, which differs 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." '

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