Smith v. State
310 Ga. App. 392
Ga. Ct. App.2011Background
- Smith was convicted by a jury of aggravated sexual battery, criminal attempt to commit child molestation, and two counts of child molestation.
- L.G., a 12-year-old, described in a recorded interview that Smith touched her breasts and vagina and attempted to place her hand on his genitals; the incidents allegedly occurred in 2004–2005 with his live-in relationship to her aunt.
- An interview of L.G. in a child-friendly environment was recorded and presented to the jury; trial testimony related to what happened, with additional detail from the recording.
- The State argued that the evidence showed penetration by Smith’s finger, supporting aggravated sexual battery and the molestation charges based on intent to arouse or satisfy sexual desires.
- Smith contested the sufficiency of the evidence and argued for jury charges on sexual battery as a lesser included offense; he also challenged jury instructions about punishment.
- The trial court denied a sexual battery instruction as a lesser included offense of aggravated sexual battery and of child molestation, and gave standard sentencing instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated sexual battery | Smith asserts no sufficient evidence of penetration by finger. | State contends evidence shows penetration and supports aggravated sexual battery. | Evidence sufficient to convict on aggravated sexual battery. |
| Lesser included offense instruction for sexual battery of aggravated sexual battery | Evidence could show touching without penetration, warranting sexual battery instruction. | Evidence either shows the completed offense or no offense; no basis for sexual battery instruction. | Trial court properly refused sexual battery instruction as lesser included offense. |
| Lesser included offense instruction for sexual battery of child molestation | Touching breasts could constitute sexual battery with lesser intent requirement. | Evidence showed the requisite intent for child molestation; no basis for sexual battery instruction. | No sexual battery instruction warranted; evidence supported intent for molestation. |
| Jury instruction on punishment vs innocence | The instruction misled jurors by focusing on innocence instead of guilt determinations. | This phrasing is a correct and clear statement of law per Roberts v. State. | Instruction regarding punishment/innocence was proper and not misleading. |
Key Cases Cited
- Hendrix v. State, 230 Ga.App. 604 (1997) (defines aggravated sexual battery and its penetration element)
- Duvall v. State, 273 Ga.App. 143 (2005) (standard for sufficiency review on appellate review)
- Walker v. State, 277 Ga.App. 485 (2006) (lesser included offense when evidence supports indicted charge or none)
- Anderson v. State, 264 Ga.App. 362 (2003) (charge on lesser included offense must be precise and applicable)
- Swailes v. State, 188 Ga.App. 709 (1988) (no lesser included offense instruction when evidence supports greater offense or none)
- Linto v. State, 292 Ga.App. 482 (2008) (no sexual battery instruction as lesser included where evidence supports intent for molestation)
- Hilliard v. State, 298 Ga.App. 473 (2009) (no sexual battery instruction where evidence does not show lacking intent)
- McGruder v. State, 279 Ga.App. 851 (2006) (sexual battery instruction not required where molestation intent is evidenced)
- Roberts v. State, 276 Ga. 258 (2003) (clarifies clarity and understanding of jury instructions)