On appeal from his conviction for riot in a penal institution (OCGA § 16-10-56), Winston Strapp argues that the evidence was insufficient. Strapp also argues that the trial court erred when it failed to charge the jury on simple battery, obstruction, and justification and when it failed to consider his post-trial request to weigh the credibility of the witnesses against him. We find no error and affirm.
“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State,
So viewed, the record shows that on the day after beginning a dispute with a corrections officer at the Douglas County jail over a bunk assignment, Strapp verbally abused the officer. Later that day, as the officer was trying to close Strapp’s cell door, Strapp grabbed the officer’s arm. In the course of the ensuing struggle, Strapp put his legs around the officer’s neck. Another eyewitness testified that Strapp put his arms around the officer’s neck, placing him in a chokehold. Strapp denied that he had applied a chokehold with either his legs or his arms, but admitted that he had been on top of the officer at one point during the fight.
After a jury found Strapp guilty of riot in a penal institution, he was convicted and sentenced to 20 years to serve. His motion for new trial was denied.
OCGA § 16-10-56 (a) provides: “Any person legally confined to any penal institution of this state or of any political subdivision of this state who commits an unlawful act of violence or any other act in a violent or tumultuous manner commits the offense of riot in a penal institution.” (Emphasis supplied.)
(a) Viewed in favor of the jury’s verdict, the evidence outlined above was sufficient to show that while Strapp was legally confined in the Douglas County jail, he engaged in a series of acts, including grabbing the victim’s arm, getting on top of the victim, and choking the victim with either his arms or his legs, some or all of which were committed in “a violent or tumultuous manner.” See Brown v. State,
(b) Strapp’s suggestion that there was a fatal variance between the indictment, which alleged that he applied a chokehold with his arms, and the victim’s account, which suggested that Strapp used his legs, lacks merit.
“Averments in an indictment as to the specific manner in which a crime was committed are not mere surplusage [and] must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law.” (Citation and punctuation omitted.) Quiroz v. State,
[t]he general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.
Id., quoting De Palma v. State,
There was no variance between the indictment and the proof here because there was some evidence that Strapp used his arms to apply the chokehold. Even if such a variance had existed, moreover, it would not have been fatal because the indictment “sufficiently apprised” Strapp of the charge against him, and because that portion
2. Strapp also argues that the trial court erred when it denied his requests to charge the jury on (a) simple battery, (b) misdemeanor obstruction of an officer, and (c) justification. We disagree.
A trial court’s refusal to give a requested jury charge is not error unless the request is entirely correct and accurate; is adjusted to the pleadings, law, and evidence; and is not otherwise covered in the general charge. And we review a trial court’s refusal to give a requested jury charge under an abuse-of-discretion standard.
(Footnote omitted.) Anderson v. State,
(a) Strapp first asserts that the trial court should have charged the jury on simple battery as a lesser included offense of riot. We disagree.
The trial court’s refusal to give Strapp’s requested charge on simple battery “is not reversible error unless simple battery is, as a matter of law,” included in riot, the crime for which Strapp was indicted. Givens v. State,
OCGA § 16-1-6 provides:
An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when: (1) [the included crime] is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of*267 the crime charged; or (2) [the included crime] differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.
As the severity of the victim’s injury is not at issue here, we consider only whether simple battery by reason of insulting physical contact is “established by proof of the same or less than all the facts... required to establish the commission of” riot. Drinkard v. Walker,
The offense of riot in a penal institution has two elements: that the defendant be “legally confined to any penal institution” in Georgia, and that he or she has committed an “unlawful act of violence or any other act in a violent or tumultuous manner.” OCGA § 16-10-56 (a). The offense of simple battery requires that the defendant either intentionally make “physical contact of an insulting or provoking nature” with or intentionally cause “physical harm” to a victim. OCGA § 16-5-23 (a) (1), (2).
The indictment against Strapp charged that “while being lawfully confined to a penal institution” in Georgia, Strapp “did commit an unlawful act of violence” by “using his arms to place a choke hold around the neck of” the victim, thereby tracking the elements of riot in OCGA § 16-10-56 (a). Riot differs from simple battery in that riot requires the use of violence or tumult and can be committed only by a person confined to a penal institution. And simple battery differs from riot in that simple battery requires an unlawful touching that is “insulting, provoking, or intentionally harmful,” Eller v. State,
Where the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative separate offense. Criminal indictments are not deemed amendable to conform to the evidence. The State has the prerogative to indict and try a defendant for a particular crime and the defendant cannot usurp that prerogative by proposing a crime different from that charged and which is not an offense included in the offense charged.
(b) Although Strapp argues that misdemeanor obstruction is also a lesser included offense of riot, misdemeanor obstruction specifically precludes the use of violence. OCGA § 16-10-24 (a) (defining misdemeanor obstruction as the knowing and willful obstruction of a law enforcement officer not involving violence); Stryker v. State,
(c) In order to obtain an instruction on the affirmative defense of justification, a defendant must admit all elements of the crime charged against him with the exception of intent. Ojemuyiwa v. State,
3. Strapp also argues that the trial court erred when it ignored his post-trial request to weigh the credibility of the witnesses against him. We disagree.
The Supreme Court of Georgia has recently summarized this subject as follows:
Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is “contrary to the principles of justice and equity,” OCGA § 5-5-20, or if the verdict is “decidedly and strongly against the weight of the evidence.” OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new*269 trial—commonly known as the “general grounds”—require the trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’ ” Walker v. State,292 Ga. 262 , 264 (2) (737 SE2d 311 ) (2013). In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence. See Choisnet v. State,292 Ga. 860 , 861 (742 SE2d 476 ) (2013).
(Punctuation omitted.) White v. State,
[although the discretion of a trial judge to award a new trial on the general grounds is not boundless — it is, after all, a discretion that “should be exercised with caution and invoked only in exceptional cases in which the evidence preponderates heavily against the verdict,” Alvelo v. State,288 Ga. 437 , 438 (1) (704 SE2d 787 ) (2011) — it nevertheless is, generally speaking, a substantial discretion. See State v. Harris,292 Ga. 92 , 94 (734 SE2d 357 ) (2012).
(Punctuation and footnote omitted.) Id. at 524-525 (2). Thus a trial court’s decision whether the evidence supports a verdict as a matter of law involves the application of a different legal standard from the same court’s discretionary consideration of the general grounds. Id.
Under this law, a trial court ruling on a motion for new trial must consider the general grounds under OCGA §§ 5-5-20 and 5-5-21 if these have been properly raised. It is also “a well-settled appellate rule,” however, “that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing. Holcomb v. State,
Strapp’s written motion asked for a new trial on three grounds: that the verdict was “contrary to the law”; that it was “contrary to the facts”; and that the trial court erred in instructing the jury. Strapp did not cite OCGA § 5-5-20 or § 5-5-21 in his motion or at the hearing on the motion. At the outset of the hearing, however, Strapp stated that
TRIAL COURT: But doesn’t the jury get to decide who is telling the truth or not?
COUNSEL: I think it’s arguable that the jury does, and the actual credibility of a witness and sufficiency of the state to give the evidence and whether or not there is enough for the jury to decide is a question for the Court. [Trial counsel] did make the motion for directed verdict that the Court denied. The defense’s position is that it should have been granted based on the overall circumstances.
TRIAL COURT: All right, so I want to make sure I understand what you’re saying. You’re saying that there’s a variance in the evidence between what was alleged in the indictment in terms of the manner of choking that is fatal?
COUNSEL: Yes, sir. . . . The evidence from [the victim was that] he was not choked at all, that his legs were around him, but he was never placed in a chokehold. The only contra evidence was from a convicted felon who by [the victim’s] own testimony was not being truthful based on the video evidence. In that case I believe it was appropriate for the Court and the Court should have granted the motion for directed verdict because there was insufficient evidence and extremely contradicted the evidence presented to the jury.
(Emphasis supplied.) Counsel and the court then continued to discuss the questions of sufficiency we address in Division 1 above, including whether there was a fatal variance between the indictment and the proof, without further discussion of the general grounds. The trial court’s order construed Strapp’s motion as arguing sufficiency, not the general grounds, and denied the motion. Strapp did not move for reconsideration of this ruling.
We are mindful of our Supreme Court’s recent holdings requiring a judge ruling on a motion for new trial on the general grounds to “consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.” White,
For all these reasons, the trial court did not err when it denied Strapp’s motion for new trial.
Judgment affirmed.