"[I]t is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury's consideration to that particular manner." Owens v. State, 173 Ga. App. 309 (4) ( 326 S.E.2d 509) (1985). In our view, the jury instruction taken from Brown constituted exactly the error condemned in Owens and requires reversal of appellant's conviction.
Because of the difference between the elements of § 16-5-23(a)(1) and (a)(2), it is error for a trial court to instruct the jury on simple battery based on "insulting or provoking" contact if the defendant was actually charged with simple battery based solely on "physical harm," unless the jury is also given a limiting instruction. See, e.g., Hammonds v. State, 263 Ga.App. 5, 587 S.E.2d 161, 163 (2003) (noting that "[w]hen an indictment specifies the commission of a crime by only one of several methods possible under the statute, but the court charges the entire Code section, the deviation may violate due process unless a limiting instruction is given"); Lyman, 374 S.E.2d at 565 ("[I]t is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury's consideration to that particular manner."); Owens v. State, 173 Ga.App. 309, 326 S.E.2d 509, 512 (1985). Simple battery based on "physical contact of an insulting nature ... must be charged specifically."
See Harris v. State, 257 Ga.App. 819, 820–21(1), 572 S.E.2d 370 (2002) (finding the evidence sufficient to sustain a conviction for family-violence battery when the defendant squeezed the victim's head and pushed her into a window, causing her to fall to the floor and scream in pain).Compare Mize v. State, 135 Ga.App. 561, 561(1), 218 S.E.2d 450 (1975) (holding that some physical harm may be presumed from being “firmly grabbed” and “squeezed” in cases of simple battery); Owens v. State, 173 Ga.App. 309, 312(3), 326 S.E.2d 509 (1985) (same).See Cox, 243 Ga.App. at 582(1), 532 S.E.2d 697;see generally Jackson, 443 U.S. at 319(III)(B), 99 S.Ct. 2781.
(Citations and punctuation omitted.) Owens v. State, 173 Ga. App. 309, 313 (5) ( 326 SE2d 509) (1985). (Citation omitted.)
State v. Tweedell, 209 Ga. App. 13 ( 432 S.E.2d 619) (1993).Dukes v. State, 265 Ga. 422, 423 ( 457 S.E.2d 556) (1995); Sanchez v. State, 197 Ga. App. 470, 474 (3) ( 398 S.E.2d 740) (1990) ("[i]t is reversible error to instruct the jury that an offense may be committed in more than one manner where only one manner is alleged in the indictment and no remedial instructions are given to limit the jury's consideration to the particular manner") (citation and punctuation omitted); Owens v. State, 173 Ga. App. 309, 312 (4) ( 326 S.E.2d 509) (1985) (same); see generally Walker v. State, 146 Ga. App. 237 ( 246 S.E.2d 206) (1978). But the evidence did not create a reasonable possibility that the jury convicted Gilliam of taking possession of the jacket with the second or third intent only. Under the undisputed facts of this case, the jury necessarily found that Gilliam intended to appropriate the jacket to his own use, the intent charged in the accusation.
Id. Even farfetched explanations must be given deference by the court in charging the jury, as the jury and not the court has the power to reject "`the defense theory raised by the accused's testimony.'" Owens v. State, 173 Ga. App. 309, 313 (5) ( 326 S.E.2d 509) (1985). See also Jones v. State, 220 Ga. App. 784, 785 ( 470 S.E.2d 326) (1996).
Although the evidence of coercion was somewhat farfetched, the court could not arbitrarily reject it as unworthy of belief and fail to charge that defense. See Owens v. State, 173 Ga. App. 309, 313 (5) ( 326 S.E.2d 509) (1985). The jury was not informed that the State had the burden of proving the absence of the elements of an affirmative defense; nor was it instructed that if it believed that Jones had been coerced, it had to acquit him. Nelson, 213 Ga. App. at 644.
Accord Sarnie v. State, 247 Ga. 414 ( 276 S.E.2d 589) (1981)." Owens v. State, 173 Ga. App. 309, 312 (4) ( 326 S.E.2d 509). In the case sub judice, defendant Griffin was charged (along with his co-defendants) for separate acts of aggravated assault in that he (along with his co-defendants) did shoot Henrico Morant and Dexter Harper with a handgun.
The record reflects that accident was the entire thrust of Metts' defense to the allegations of Count 3. See Jones v. State, 161 Ga. App. 610, 611-612 ( 288 S.E.2d 788) (1982). Even without request, when the defendant's sole defense is accident, the trial court must give appropriate instructions on this principle to call the defense to the jury's attention, and enable the jury to intelligently consider it. Harris v. State, 145 Ga. App. 675 ( 244 S.E.2d 620) (1978); Jones, supra at 612; Owens v. State, 173 Ga. App. 309, 312-313 ( 326 S.E.2d 509) (1985). Metts' conviction and concurrent sentence for child molestation on Count 3 must be reversed.
While the fact that the court instructed the jury on the specific charges set forth in the indictment probably avoided reversible error, see Ross v. State, 192 Ga. App. 65, 66 (2) ( 383 S.E.2d 627) (1989), upon retrial the charge should be limited to the manner alleged in the indictment. See Owens v. State, 173 Ga. App. 309, 312 (4) ( 326 S.E.2d 509) (1985). Judgment reversed. McMurray, P. J., and Cooper, J., concur in the judgment only.