Milner v. State

The trial court erred in charging the jury that it could convict the defendant for making terroristic threats in a manner not alleged in the indictment.

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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 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.

Milner v. State

The trial court erred in charging the jury that it could convict the defendant for making terroristic threats in a manner not alleged in the indictment.

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