                               FIRST DIVISION
                                DOYLE, C. J.
                           BOGGS and PETERSON, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                   February 10, 2016




In the Court of Appeals of Georgia
 A15A1927. BOLDEN v. THE STATE.                                               PE-039C

      PETERSON, Judge.

      Corey Bolden appeals from the denial of his motion for a new trial following

his convictions for multiple counts, including kidnapping with bodily injury,

aggravated assault (family violence), rape, burglary, and cruelty to children in the

third degree. He argues that trial counsel was ineffective for failing to object to a jury

charge on burglary, and also argues the trial court erred by failing to merge the rape

count with one of the aggravated assault counts, and by asking improper and

irrelevant questions of a State witness, which placed Bolden’s character in evidence.

Because the aggravated assault and rape were separate and distinct acts, we hold the

trial court’s decision not to merge these two counts was proper. We conclude the trial

court’s questions to the State’s witness did not constitute error because the questions
did not express any opinion. Finally, we hold the failure of Bolden’s trial counsel to

object to the jury instructions on burglary, which expanded the basis for conviction

beyond that charged in the indictment, amounted to ineffective assistance of counsel.

As such, Bolden is entitled to a new trial on the burglary charges, but we affirm his

other convictions.

      “On appeal, the evidence must be viewed in the light most favorable to support

the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver

v. State, 230 Ga. App. 224, 224 (496 SE2d 292) (1998) (citing Williams v. State, 228

Ga. App. 698, 699 (1) (492 SE2d 708) (1997)). So viewed, the evidence shows that

Bolden fathered three children with the victim, but that Bolden and the victim were

not in an ongoing romantic relationship. One evening, Bolden entered the victim’s

house through an unlocked back door without permission. Bolden, armed with two

knives, attacked the victim in her room, pointing one of the knives in her back and

pulling her hair. Bolden removed his clothing and demanded money from the victim,

but the victim replied she did not have the money Bolden was seeking. Bolden

demanded that the victim remove her clothing, which she initially refused. Bolden

then threatened to kill the victim’s mother and minor children, who were also in the

house. Bolden forced the victim to masturbate him, proceeded to choke the victim,

                                          2
and demanded oral sex, which he eventually forced the victim to perform, causing her

to vomit. The victim escaped to a bathroom, where Bolden again attacked the victim,

pulling her hair and throwing her on the bed on her stomach. Bolden proceeded to

penetrate the victim both anally and vaginally with his penis. Still armed, Bolden then

forced the victim into her vehicle, along with their three children and one of their

young cousins. The victim managed to jump out of the vehicle at a stoplight and flag

a passing vehicle for help. Bolden continued driving to a relative’s house, and upon

discovering that she was not home, abandoned the children in the vehicle and left in

another. The oldest of the children managed to ask a passing police officer for help,

and Bolden was apprehended soon thereafter.

      1. Bolden claims that the trial court erred by failing to merge the rape count

with one of the aggravated assault counts. We disagree.

      In considering whether the aggravated assault and rape counts should be

merged, the court first considers whether the same conduct establishes the

commission of both offenses. See Ledford v. State, 289 Ga. 70, 72 (1) (709 SE2d 239)

(2011). Unless the same conduct of the accused establishes the commission of both

offenses, the rule prohibiting multiple convictions if one crime is included in the

other is not implicated. Id. at 71 (1).

                                          3
      A person commits the offense of aggravated assault when he assaults “[w]ith

intent to murder, to rape, or to rob” or “[w]ith a deadly weapon or with any object,

device, or instrument which, when used offensively against a person, is likely to or

actually does result in serious bodily injury[.]” OCGA § 16-5-21. A jury is authorized

to find that a defendant’s use of his hands can be considered use of a deadly weapon

or object that when used offensively is likely to result in serious bodily injury. See

Mallon v. State, 253 Ga. App. 51, 53-54 (3) (557 SE2d 409) (2001); Crider v. State,

246 Ga. App. 765, 768 (3) (542 SE2d 163) (2000). A person commits the offense of

rape when “he has carnal knowledge of a female forcibly and against her will[.]”

OCGA § 16-6-1(a)(1) (internal punctuation omitted). “Carnal knowledge in rape

occurs when there is any penetration of the female sex organ by the male sex organ.”

OCGA § 16-6-1(a).

      Bolden’s choking of the victim served as the basis for the aggravated assault

count. This aggravated assault occurred prior to the victim escaping to the bathroom,

and well in advance of the rape. He was armed with at least one knife at the time, and

threatened to kill the victim, her mother, and their children. The victim vomited, and

escaped to the bathroom. Moments later, Bolden committed rape when he came into

the bathroom, pulled the victim’s hair, threw her on the bed on her stomach, and

                                          4
penetrated her both anally and vaginally with his penis. The act of choking the victim

was a “separate and distinct” act of “force and intimidation outside that necessary to

accomplish the rape” and resulted in injury to the victim outside of the rape, as the

victim had marks on her neck. Williams v. State, 295 Ga. App 9, 14 (2) (670 SE2d

828) (2008) (citation omitted). Further, “[b]ecause the two convictions are based on

separate acts, the required evidence test of Drinkard v. Walker, 281 Ga. 211, 215 (636

SE2d 530) (2006) is inapplicable.” Thomas v. State, 325 Ga. App. 682, 685 n. 3 (2)

(754 SE2d 661) (2014).

      Thus, the trial court did not err in failing to merge the convictions for

aggravated assault and rape, and the jury was authorized to find Bolden guilty of both

rape and aggravated assault under the circumstances.



      2. Bolden next asserts that the trial court erred by asking improper and

irrelevant questions of a State witness, thereby placing Bolden’s character in

evidence. Bolden asserts that, during the testimony of the police investigator, the trial

court should not have asked whether the witness was referring to the victim or to

Bolden’s new girlfriend, and should not have inquired into whether Bolden was



                                           5
paying the victim child support. Bolden argues that these questions reflected the

court’s disapproval of his lifestyle and character.

      Although Bolden did not object to this line of questioning at trial and did not

include the error among those asserted as the basis for his motion for a new trial,

under the version of OCGA § 17-8-57 in effect at the time of trial, we must still

reverse if we find error. See former OCGA § 17-8-57. See also Goodrum v. State, 269

Ga. App. 397, 399-400 (1) (604 SE2d 251) (2004). But a “trial court may propound

questions to any witness to develop the truth of the case.” Id. at 400; see also Perdue

v. State, 147 Ga. App. 648, 652 (9) (249 SE2d 657) (1978).

      Here, the court asked questions of the police investigator to clarify the identity

of the person about whom the investigator was testifying, and to clarify the financial

relationship between Bolden and the victim. The court did not express or intimate an

opinion as to proof or as to guilt, nor was the questioning argumentative. Therefore

we find no error here.

      3. Bolden’s final enumeration asserts that his trial counsel was ineffective for

failing to object to the trial court’s jury instruction on the burglary counts, arguing

that the instruction went beyond the language in the indictment to include an alternate

means by which the crimes could have been committed. We agree.

                                          6
      In order to prevail on an ineffective assistance of counsel claim, Bolden “must

show that trial counsel’s performance fell below a reasonable standard of conduct and

that there existed a reasonable probability that the outcome of the case would have

been different had it not been for counsel’s deficient performance.” Scott v. State, 290

Ga. 883, 889 (7) (725 SE2d 305) (2012) (citing Strickland v. Washington, 466 U.S.

668 (104 S. Ct. 2052) (1984)); see also Concepcion v. State, 205 Ga. App. 138, 139

(421 SE2d 554) (1992).

      Here, the indictment stated that Bolden committed burglary when he “did

without authority enter into the residence” of the victim with the intent to commit

rape and aggravated assault. But the trial court originally charged the jury that “[a]

person commits the offense of burglary when, without authority, that person enters

a dwelling house of another or any room or part of it with the intent to commit a

felony.” The trial court went on to charge that “it is not necessary that the alleged

felony actually occur or be accomplished. It is only necessary that the evidence show

beyond a reasonable doubt that the accused did, without authority, enter or remain in

the building or dwelling place of another with the intent to commit an alleged

felony.” After commencing deliberations, the jury asked the court to explain the

portion of the jury charge including the phrase “or remain in,” and, relatedly, the

                                           7
timing by which the defendant must have developed the requisite intent. The trial

court then clarified the jury’s question, stating “as I understand it, the question from

the jury - and if this is not correct you need to get me - is that let’s assume for

argument sake that we enter a place with one intent and while we’re there we

formulate another one.” The foreman confirmed this was the issue submitted to the

court for clarification.

      In response, the trial court directed the jury to the indictments with respect to

the manner in which the burglaries were to have been accomplished, and stated that

the jury was to consider whether Bolden “with or without authority” entered the

victim’s dwelling “or any room or part of it with the intent to commit a felony.”

      Bolden asserts on appeal that the trial court erred by including “or remain” in

the original jury instructions, and by including in its response to the jury’s question

the additional language “or any room or part of [the dwelling],” because the burglary

indictment was limited to Bolden’s entering the victim’s residence, and that his trial

counsel was ineffective for not objecting.

      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 defines the crime as an act
      which may be committed in a manner other than the manner alleged in

                                           8
      the indictment. The giving of a jury instruction which deviates from the
      indictment violates due process where there is evidence to support a
      conviction on the unalleged manner of committing the crime and the
      jury is not instructed to limit its consideration to the manner specified
      in the indictment.


Smith v. State, 310 Ga. App. 418, 421 (1) (714 SE2d 51) (2011) (citation and internal

punctuation omitted). “While instructing the jury that a crime can be committed in a

manner different from that charged in the indictment can constitute reversible error,

a reversal is not mandated where . . . the charge as a whole limits the jury’s

consideration to the specific manner of committing the crime alleged in the

indictment.” Machado v. State, 300 Ga. App. 459, 462 (5) (685 SE2d 428) (2009);

see also Dudley v. State, 287 Ga. App. 794, 796 (2) (652 SE2d 840) (2007) (court

considers charge “as a whole” in determining whether the charge conformed to the

indictment and stated the law accurately); Schneider v. State, 312 Ga. App. 504, 507-

508 (2) (718 SE2d 833) (2011).

      Here, the trial court referred the jury to the indictment with respect to how the

burglary was accomplished and told them to consider whether Bolden was “with or

without authority” when he entered the victim’s dwelling, thus eliminating the “or

remain in” language and correcting the original error through this limiting instruction.

                                           9
See Lumpkin v. State, 249 Ga. 834, 836-837 (2) (295 SE2d 86) (1982) (finding no

error where the trial court recited the statutory definition of the offense, but then

limited the jury’s consideration to the specific method of committing the offense “as

charged in [the] indictment”) (internal punctuation omitted).

      However, our precedent makes clear that a re-charge by the court after the jury

has indicated confusion on this point must include limiting instructions confining the

jury’s consideration to the elements of the crime as charged in the indictment.

Compare Smith, 310 Ga. App. at 422 (1) (finding recharge insufficient where the trial

court simply referred the jury to the original charge and the indictment without any

further limiting or remedial instruction), Milner v. State, 297 Ga. App. 859, 860-61

(1) (678 SE2d 563) (2009) (recharge referred back to indictment, but did not give a

limiting instruction to ensure that the jury would find the defendant guilty of the

crime as specifically charged in the indictment) with Wright v. State, 327 Ga. App.

451, 453 (757 SE2d 890) (2014) (finding lack of jury confusion key in rejecting

challenge to trial court’s jury instructions). “If there is a reasonable possibility that

the jury convicted the defendant of the commission of a crime in a manner not

charged in the indictment, then the error is harmful.” Chapman v. State, 273 Ga. 865,

868 (2) (548 SE2d 278) (2001) (citation and punctuation omitted).

                                           10
      Here, the trial court’s second set of instructions again expanded the charge

beyond the bounds of the indictment by instructing the jury that they could consider

whether Bolden entered “any room or part of [the dwelling] with the intent to commit

a felony.” The evidence presented at trial included testimony that Bolden entered the

victim’s home, armed with a knife. Once inside the victim’s home, the evidence

shows that he may have obtained another knife from the victim’s kitchen. The jury

heard testimony that once Bolden was in her room, he first demanded money from her

and promised to leave if she would provide it. After she responded that she did not

have it, Bolden proceeded to choke and later rape the victim. And though he disputes

the victim’s version of events, Bolden himself testified that he entered the victim’s

home to talk with the victim and asked the victim to give him some money once he

was in her room. The jury’s question to the trial court suggests that the jury may have

been considering whether it could convict Bolden of burglary if he entered the

victim’s residence without the intent to commit an aggravated assault or rape, but

then formulated the requisite intent before entering “any room or part of it[.]”

      When the jury expressed its confusion, the trial court should have instructed

the jury to limit its consideration to determining whether Bolden was guilty of

committing burglary in the specific manner alleged in the indictments only - that is,

                                          11
whether Bolden had the intent to commit aggravated assault and rape before entering

the victim’s home without authority. See Smith, 310 Ga. App. at 422 (1). Instead, “the

trial court aggravated the confusion” by simply referring the jury to the indictments,

and repeating the portion of the original charge stating that Bolden could be found

guilty of burglary if he entered the victim’s house or “any room or part of it with the

intent to commit a felony” with no additional limiting or remedial instruction. Id.

Therefore, under the circumstances of this case, the trial court’s instructions create

a reasonable possibility that the jury convicted Bolden of the commission of a crime

in a manner not charged in the indictment.

      Because we conclude that the jury charge was error, it follows that trial

counsel’s failure to object to this erroneous jury instruction fell below an objective

standard of reasonableness and prejudiced the defendant to the point that a reasonable

probability exists that, but for counsel’s deficient performance, the outcome of the

trial would have been different, and this amounted to ineffective assistance of

counsel. See Hall v. Wheeling, 282 Ga. 86, 87 (1) (646 SE2d 236) (2007).

Accordingly, we reverse the trial court’s denial of Bolden’s motion for a new trial

with respect to the two burglary counts only.



                                          12
Judgment affirmed in part, reversed in part. Doyle, C. J., and Boggs, J. concur.




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