In Smith v. State, --- S.E.2d ----, 2011 WL 2585973 (July 1, 2011), the Georgia Court of Appeals reversed the defendant's child molestation conviction concluding that the trial court's jury instructions and response to jury questions violated due process by allowing a child molestation conviction in a manner not alleged in indictment.
The Court held that the jury instructions omitted critical language from the indictment and did not give a limiting instruction to ensure that the jury would find the defendant guilty in the specific manner charged in the indictment. In Georgia, a criminal defendant’s right to due process may be endangered when an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction allows the jury to convict based on a manner other than the one alleged in the indictment. While this type of error will frequently constitute reversible error, a reversal is not required where the instruction as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment. Here, the Georgia Court of Appeals found that the trial court did not give a limiting instruction to ensure that the jury would find Smith guilty of child molestation in the specific manner charged in the indictment. Therefore, the Court reversed Smith’s conviction.
The primary focus of our practice is the defense of sex offense cases and we handle cases throughout Atlanta and Georgia. It is critical in these cases to raise objections to any improper jury instructions at the time of trial in order to properly preserve these errors for appeal. We have been able to get convictions reversed as a result of erroneous jury instructions and we have also been successful in correcting these improper instructions at trial before they can prejudice our client’s right to a fair trial.
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