Henderson v. the State
333 Ga. App. 759
Ga. Ct. App.2015Background
- Victim (age 11) stayed with Jimmy Henderson for two weeks; multiple sexual acts occurred (oral contact by defendant, defendant’s mouth on victim’s genitals, manual touching, forced disrobing for massages, bathing/fondling). A recorded interview suggested a finger was inserted into the victim’s genital area, but the victim testified at trial she was not penetrated by a finger.
- Henderson was indicted on aggravated sexual battery (Count 1 — alleged penetration of the child’s sexual organ with the defendant’s finger) and aggravated child molestation (Count 2 — alleged oral sodomy by the child upon the defendant).
- Because of inconsistent evidence on penetration, the State sought and the court (with defense consent) charged the jury on sexual battery as a lesser included offense of aggravated sexual battery.
- The trial court instructed the jury on sexual battery using the statutory definition (intentional contact with intimate parts; 11-year-old cannot consent) but did not limit that instruction to the specific manner alleged in the indictment (finger penetration).
- The jury asked whether the charges had to involve a finger as alleged; the court replied that aggravated sexual battery must be proven as charged (finger), but sexual battery need not be limited to the manner alleged; defense made no objections at trial.
- Defendant was convicted of sexual battery and aggravated child molestation; on appeal he argued both jury instructions constituted plain error.
Issues
| Issue | Henderson's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the sexual battery instruction impermissibly allowed conviction for a manner of contact not alleged in the indictment | Instruction was overly broad; jury should have been limited to finding sexual battery only in the manner alleged (finger) | No contemporaneous objection; instruction on statutory sexual battery was proper as lesser included offense | Reversed sexual battery conviction: instruction was erroneous and plain error because it allowed conviction for an uncharged manner of commission |
| Whether the aggravated child molestation instruction was improper for referring to any act of sodomy rather than the specific conduct alleged | Charge should have mirrored indictment’s description of oral sodomy (mouth of child and defendant’s sexual organ) | Court instructed on the offense as charged in Count 2 and properly defined aggravated child molestation | Affirmed aggravated child molestation conviction: no error found in that instruction |
Key Cases Cited
- State v. Kelly, 290 Ga. 29 (plain-error review of jury instructions required)
- Lake v. State, 293 Ga. 56 (plain-error standard and application)
- Elrod v. State, 238 Ga. App. 80 (error to charge an offense may be committed in ways not alleged in indictment when evidence permits conviction on uncharged manner)
- Terry v. State, 291 Ga. 508 (obvious defect vs. arguable defect in jury charge)
- Patterson v. State, 328 Ga. App. 111 (erroneous instruction that omitted an essential element can require reversal)
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- Smith v. State, 310 Ga. App. 392 (sexual battery is a lesser-included offense of aggravated sexual battery)