The judge may also instruct the jury on a lesser offense than that charged in the indictment. Under Georgia law, the finder of fact in a criminal case may be authorized, depending on the evidence, to convict the defendant of a lesser-included offense, instead of the greater charged offense, even though that lesser- included offense is not explicitly presented in the indictment or accusation. O.C.G.A. § 16-1-6; Bennett v. State, 244 Ga. App. 149 (2000); Fulton v. State, 232 Ga. App. 898 (1998).
“A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” Soto v. State, 303 Ga. 517 (2018). But “[i]t is error to charge the jury on an offense not embraced in the indictment.” Nalls v. State, 304 Ga. 168 (2018); State v. Hightower, 252 Ga. 220 (1984) (“[W]here 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.”); Scoggins v. State, S23A0894 (December 19, 2023). A judge does not have to give an instruction on a lesser included offense if such an instruction is not requested. Bryson v. State, 316 Ga. App. 512 (2012); Elrod v. State, 316 Ga. App. 491 (2012). A judge's failure to charge on a lesser included offense, without a written request by the State or the defense, is not error. Ingram v. State, A12A0843; Brown v. State, 285 Ga. 324 (2009); Eskew v. State, 309 Ga. App. 44 (2011).
A crime is a lesser included crime of another crime when "it 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 the other crime." O.C.G.A. § 16-1-6 (1). When a defendant is charged with one offense and when there is some evidence, no matter how slight, presented to the jury that shows that the defendant committed a lesser-included offense, then the judge must, upon timely written request, instruct the jury on the lesser- included offense. Tiller v. State, 314 Ga. App. 472 (2012); Edwards v. State, 264 Ga. 131 (1994). On the other hand, where the State's evidence establishes all of the elements of the charged offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Crowley v. State, 315 Ga. App. 755 (2012); White v. State, 310 Ga. App. 386 (2011).
The jury does not have to reach a decision on the greater offense before they can consider the lesser- included offense. Arrington v. Collins, 290 Ga. 603 (2012); Cantrell v. State, 266 Ga. 700 (1996).