On appeal from his conviction for child molestation, statutory rape, and enticing a child for indecent purposes, Rozell Brown argues that the evidence was insufficient as to the statutory rape count and that the trial court erred when it excluded evidence that could have impeached the victim’s aunt, when it failed to include the definition of enticing a child in the jury charge, and when it refused to charge on the lesser included offense of sexual battery. We find no reversible error and affirm.
“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State,
So viewed, the record shows that on or about March 28,2009, and accompanied by her cousin and aunt, the 14-year-old victim attended a cookout hosted by Brown and his wife. During or soon after the cookout, Brown asked the victim and her cousin whether they wanted to go to a motel. Thinking that Brown was inviting them to a party, the girls agreed. When Brown texted the girls at their aunt’s house later that night to ask whether they were “ready to go” to the motel, they replied “no” because the aunt was still awake. When the aunt fell asleep, however, the girls left the house through a window. Brown picked them up as they walked down a road nearby and also picked up the cousin’s 15- or 16-year-old boyfriend. Brown drove all three teenagers to a motel, checking in alone while the others waited at a room in the rear. Once in the room, the cousin and her boyfriend saw Brown kissing the victim on the neck and trying to remove her belt. Brown asked the cousin and her boyfriend to go into the bathroom, which they did. According to the victim’s testimony at trial, Brown undressed her and penetrated her vagina with his penis. As the sex continued, the cousin heard the bed moving back and forth against the wall, and the boyfriend heard a girl moaning. When the boyfriend left the bathroom, he saw Brown naked. A few days later, Brown entered a theater where the victim and three other girls were watching a movie. Brown sat down beside the victim and put his hand down her pants. When the aunt entered the theater, Brown left.
When another cousin told the victim’s mother and aunt about the night at the motel, the victim reported Brown’s attacks to the Coweta County sheriff’s office. Brown was charged with molestation, statutory rape, and enticing a child for indecent purposes in connection with the incidents at the motel. After a jury found Brown guilty, he was convicted and sentenced to 30 years to serve. His motion for new trial was denied.
1. Brown first contends that because OCGA § 16-6-3 requires more than a victim’s unsupported testimony to prove the offense of statutory rape, the evidence here was insufficient to sustain his conviction for that crime. We disagree.
Under OCGA § 16-6-3 (a), “[a] person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported
the quantum of corroboration needed is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration and ultimately the question of corroboration is one for the jury.
(Citation, punctuation and footnote omitted.) Weldon v. State,
In this case, there was sufficient corroboration. First, the record shows that the victim made a statement to police consistent with her testimony at trial. As this Court has held, “[a] child-victim’s prior consistent statements, as recounted by third parties to whom such statements were made, can constitute sufficient substantive evidence of corroboration in a statutory rape case.” (Citation and punctuation omitted.) Lee v. State,
2. Brown argues that the trial court abused its discretion when it barred cross-examination of the aunt concerning a false accusation of rape she made against her own boyfriend. We disagree.
The record shows that before trial, Brown asked to cross-examine the aunt about a false statements charge, later dismissed, arising from her accusation that her boyfriend had raped her. The trial court made a preliminary determination that the aunt’s accusation against her boyfriend and the victim’s accusation against Brown had no connection. At trial, the trial court conducted voir dire as to the aunt and then confirmed its earlier ruling and denied Brown’s motion because, among other things, the false statements charge against the aunt had been dismissed and because there was no evidence that the State obtained her testimony in this case by means of the dismissal of the earlier case.
This Court has held that in order to obtain the admission of a previous false allegation of sexual abuse, a defendant must establish outside the presence of the jury that “a reasonable probability of falsity exists” as to that allegation. Clements v. State,
Moreover, although there was evidence that the aunt confronted Brown about his suspicious appearance at the movie theater and accompanied the girls to the sheriff’s office, there was no evidence that the aunt reported the actual attack at the motel to authorities. See Lane v. State,
3. Brown also argues that he was harmed by the trial court’s failure to include a definition of the crime of enticing a child for indecent purposes in its charge to the jury. We disagree.
OCGA § 16-6-5 provides that “[a] person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” The record shows that near the beginning of its charge to the jury, the trial court read the indictment against Brown that Brown “did unlawfully solicit, entice, and take [the victim], a child under the age of 16 years, to [a motel] for the purpose of child molestation and indecent acts, contrary to the laws of the State of Georgia.” The trial court also told the jury that “[t]he indictment and the plea form the issue that you are to decide.” The indictment alleged every material element of enticing a child for indecent purposes pursuant to the statute even as
A failure to object to a charge at trial typically precludes appellate review except as to “plain error which affects substantial rights of the parties.” OCGA § 17-8-58 (b). Under State v. Kelly,
First, there must be an error or defect — some sort of “deviation from a legal rule” — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the trial court proceedings.” Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.”
(Punctuation and emphasis omitted.) Id. at 33 (2) (a), quoting Puckett v. United States,
Even after its decision in Kelly, the Supreme Court of Georgia has reaffirmed that “[j]ury instructions are read and considered as a whole in determining whether there is error.” (Punctuation omitted.) Sapp v. State,
4. Finally, Brown argues that the trial court erred when it refused his request to charge the jury on sexual battery as a lesser included offense of both child molestation and statutory rape. See OCGA § 16-6-22.1 (b) (defining sexual battery as intentional physical contact with “the intimate parts of the body of another person without the consent of that person”). But Brown has pointed to no evidence suggesting that he merely touched rather than penetrated the victim and that this touching occurred “without the requisite intent” to commit child molestation. Smith v. State,
Judgment affirmed.