Burke v. State, 316 Ga. App. 386

Burke was convicted after a jury trial of child molestation (Count 1), enticing a child for indecent purposes (Count 2), and criminal attempt to commit child molestation (Count 3).
On appeal Burke contends ineffective assistance of counsel for failing to demur Counts 1 and 2, arguing mixed elements of rape with those charges.
At trial, 15-year-old C. H. testified Burke approached her, obtained her number, and repeatedly arranged to meet at a park, giving money and requesting secrecy.
Burke twice picked up C. H. from school to go to the park, and during a later meeting he had sexual intercourse with her; she expressed discomfort.
During Christmas, Burke was found in C. H.’s bedroom by her mother after which Burke fled and police were notified.
The court held that filing demurrers would be futile because child molestation can involve intercourse with a minor, and evidence supported intent to arouse sexual desires.

Issue	Plaintiff's Argument	Defendant's Argument	Held
IAC for failing to demur Counts 1 and 2	Burke argues counsels’ failure to demur was deficient.	Burke asserts demurrers were warranted due to mixed elements of rape with the charges.	No merit; demurrers would have been futile.
Sufficiency of evidence for child molestation	Evidence showed intent to arouse sexual desires.	Evidence failed to show the required intent.	Sufficient evidence supports the conviction.

Maynard v. State, 290 Ga. App. 403 (Ga. App. 2008) (intent and inferential proof in child molestation cases)
Wand v. State, 230 Ga. App. 460 (Ga. App. 1998) (evidence sufficiency and inferential reasoning)
Ryan v. State, 276 Ga. App. 87 (Ga. App. 2005) (no penetration required to prove child molestation)
Branam v. State, 204 Ga. App. 205 (Ga. App. 1992) (clarifying elements and charges in molestation prosecutions)
McCord v. State, 248 Ga. 765 (Ga. 1982) (general standards for sexual-offense evidence and proof)