In Henderson v. State, the Georgia Court of Appeals reversed the defendant's sexual battery conviction as the trial court's instruction failed to inform the jury that it must find that the defendant committed the offense in the manner alleged in the indictment.
The defendant was indicted for the offense of aggravated sexual battery. The indictment charged him with inserting his finger into the alleged victim’s vagina. At trial, the evidence with respect to this charge was unclear so the State requested that the jury be instructed on the lesser included offense of sexual battery. The jury then convicted the defendant on the lesser offense.
During deliberations, the jury asked the trial court, “Does the charge of aggravated sexual battery and/or sexual battery have to be a finger in accordance with the indictment?” The trial court responded that aggravated sexual battery had to be proven in the manner alleged in the indictment, but that the lesser offense of sexual battery just had to be proven in accordance with the statutory definition that the court had previously given. This definition, however, did not instruct the jury that, for sexual battery, the touching had to be in the manner alleged in the indictment.
The Court of Appeals noted that the trial court’s answer to this question essentially instructed the jury that it could find the defendant guilty of sexual battery even if it found that he did not use his finger to touch the alleged victim’s vagina. The Court held that since the evidence at trial showed that the defendant had touched the alleged victim’s vagina with his mouth as well as with his finger, there was a reasonable probability that the jury convicted him of sexual battery in a manner not alleged in the indictment. Moreover, the Court found that the erroneous instruction constituted plain error as it was obvious, it likely contributed to the outcome of the case, and it seriously affected the fairness of the defendant’s conviction.
As a result, the Court reversed the defendant’s sexual battery conviction.
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