Following a jury trial, Matthew Shane Elrod was convicted of aggravated assault and possession of a firearm during the commis *81 sion of a crime. 1 Elrod contends his trial counsel was ineffective, the evidence was insufficient to support the verdicts, and the trial court erred in giving or refusing to give certain jury charges. Because the trial court gave an erroneous and harmful recharge, we reverse.
Viewed in the light most favorable to support the verdicts, the evidence reveals that during the afternoon of September 24, 1996, Walker County Sheriff’s deputies responded to a domestic violence 911 call involving Matthew Shane Elrod and his stepfather, Richard Scott. Several of Elrod’s neighbors and their children witnessed the incident, gave statements, and testified at trial. Elrod, who had been drinking, arrived at his mother’s home in the Round Pond Trailer Park, saw his clоthes airing on the clothesline, and accused his mother of selling his personal belongings. Elrod and his mother got into a heated argument. Scott initially told the deputies thаt when he attempted to break up the fight, Elrod struck him on the back with a broom handle. Scott wrestled the broom away from Elrod and attempted to subdue him with a head lоck, but Elrod broke free and pulled a handgun from his pocket and pointed it at Scott’s face. Scott managed to push Elrod’s hand away before Elrod pulled thе trigger. Scott ran to his truck and drove away. Elrod followed him on foot, firing several shots at the back of the departing truck. Elrod then got into a car and drove awаy.
A neighbor testified she heard Elrod yelling as he ran after Scott: “I’ll kill you you . . . SOB.” She also heard Elrod’s mother shouting: “Shane, quit, quit.” And, when Elrod’s mother noticed the neighbors were watching, this sаme witness heard her say: “Keep your noses out of my business.” Scott, who denied at trial that Elrod fired at him, was impeached with the prior inconsistent statements he gavе police when he was interviewed immediately following his 911 call for help. Elrod’s mother admitted that Elrod had a gun, but that it was a toy cap gun. Elrod testified that he did not shoot at Scott, that he had no gun during the incident, and that he and Scott had simply been wrestling. A deputy noticed several scratches on the back of Scott’s dump truck but aрparently could not determine whether any of them were made by bullets. No gun, bullets, or shell casings were introduced into evidence.
1. On appeal, this Court determines evidence sufficiency. We do not weigh the evidence or determine witness credibility.
Davis v. State,
2. Elrod argues that the trial court errеd in recharging the jury on aggravated assault in response to a question posed by the jury. Elrod’s attorney preserved the right to object to the recharge by reserving exceptions to it. The jury asked whether they could find Elrod guilty of aggravated assault if the gun was not discharged even though the indictment alleged that Elrod committed the aggravated assault “by shooting said firearm at Richard Scott and the vehicle he was driving.” One of the jurors elaborated as follows: “At the bottom of the indictment it read[s] aggravated assault, but then it continues on to give the specifics of what the assault was, and that’s where we have the problem. Is finding him guilty of the aggravated assault the same as agreeing to those specifics?” The court told the jury it could not answer questions about the facts, but only about the law. The jury then asked to hear the law of aggravated assault again. The court gave the jury a recharge on aggravated assault that included this statement: “If the pointing of a firearm places thе victim in reasonable apprehension of receiving an immediate violent injury, the crime of aggravated assault has occurred. It makes no differencе if the weapon was loaded or could, in fact, be fired.” The recharge was not followed by a limiting instruction that informed the jury they were authorized to find Elrod guilty only if they found he committed the aggravated assault in the way and manner alleged in the indictment.
Although it is not error to limit a recharge to the question asked,
*83
Davis v. State,
In this case, Elrod was сharged with committing an aggravated assault by “shooting,” and not by “pointing,” a handgun. As we have explained, “no averment in an indictment can be rejected as surplus-agе which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same аs laid will amount to a variance.” (Punctuation omitted.)
Walker,
supra at 242 (1). Given the way the indictment was drafted, the jury was required to find beyond a reasonable doubt that Elrod shot a handgun at Scott in order to find him guilty of aggravated assault. Id.; see also
Griffin v. State,
3. Elrod’s remaining enumerations of error are rendered moot by this ruling.
Judgment reversed.
Notes
Pursuant to the trial court’s order granting him an out-of-time appeal, Elrod appealed both to this Court and to the Supreme Court of Georgia, which transferred its case here. Because the appeals are identical, we consolidate them.