Following the denial of his motion for new trial, Burgess appeals his conviction and sentence for child molestation, OCGA § 16-6-4 (a). Burgess was indicted for statutory rape, OCGA § 16-6-3. He does not appeal his conviction and sentence for escape, OCGA § 16-10-52, despite his challenge to the fairness of the trial.
The evidence viewed so as to uphold the verdict,
Thomas v. State,
The farm’s owner testified that he saw Burgess and the girl lying in a low place in the woods and that Burgess was on the little girl, “hunching up and down,” “sexing her.” Although the examining physician saw no evidence of injury to the child more than a day after the incident, he agreed that he could not be medically certain that the victim did not have sexual intercourse, and that if the grown man had not actually penetrated the vagina but had merely rubbed his penis up and down between the girl’s legs, there would be no visible signs.
1. Appellant contends the State failed to prove his guilt beyond a reasonable doubt. The evidence was sufficient to enable any rational trier of fact to find Burgess guilty of child molestation beyond a reasonable doubt.
Jackson v. Virginia,
2. Appellant contends that the trial court erred in charging the *791 jury that child molestation was “as a matter of law” a lesser included offense of statutory rape. He argues that he was deprived of due process because he was indicted only for statutory rape, in narrow terms, and there were no allegations relating to the more general separate offense of child molestation. Child molestation, he contends, has heretofore not been determined to constitute an included offense of statutory rape as a matter of law.
OCGA § 16-1-6 provides that a crime is a lesser included offense when, “[i]t 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 crime charged; . . .” or “[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.”
The statute provides for a “more lenient ‘alternative’ test, rather than the narrower ‘conjunctive’ standard prevailing in federal courts,”
Ramsey v. State,
The indictment charged that Burgess “did engage in sexual intercourse with [the victim], a female under the age of 14 years, not his spouse.” The narrower wording of the act, which because it is more physically invasive is a greater offense, fits within the definition of child molestation, which occurs when one “does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4. The latter is lesser in degree in relation to statutory rape.
Glisson v. State,
Contrary to appellant’s contention, the trial court did not charge the jury that child molestation was a lesser included offense of statutory rape “as a matter of law” but that after considering the testimony and evidence presented, if the jury did not find defendant guilty of statutory rape, it could in this case then consider the lesser included offense of child molestation. The evidence shows that child molestation was a lesser included offense of statutory rape as a matter of fact. See
Coker v. State,
The trial court did not err in instructing the jury that it could return a verdict on child molestation.
Lamar v. State,
*792 3. Appellant contends that the trial court abused its discretion in allowing the victim to testify over his objection to her competency.
“A child is competent to testify if the court is satisfied that the child knows and appreciates the fact that ‘as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation, he is subject to be punished by the court.’ [Cits.]”
Grier v. State,
The child, who was nine or ten and in the third grade when she testified, stated: she. knew what the truth was; it was better to tell the truth than to lie; she was going to tell the truth; she might get in trouble if she lied. She also testified that she understood what it would be if she was asked to raise her hand and swear to tell the truth, that it would be an oath, and that if she violated the oath and told lies there was a penalty and she might get in trouble.
The trial court did not abuse its discretion in finding the child victim competent to testify.
4. Appellant contends that the trial court erred in overruling his motion under
Batson v. Kentucky,
Defendant, who is black, made his challenge to the jury chosen following the dismissal of the venire panel but prior to the jury being sworn. See
State v. Sparks,
The State then related numerical data about the strikes exercised on the panel of forty-two from which the jury of eleven whites and one black (8.3%) were selected. Of the forty-two veniremen, six (14.3%) were black. Of the State’s ten strikes, it used six on white persons (60%) and four on blacks (40%). By its strikes, the State excluded 66.6% of the black veniremen. Of the defense’s twenty strikes, nineteen (95%) were used to strike whites and one (5%) to strike blacks.
As to the reason for the strikes, the State concluded that it had “a good reason for each and every one, ... a racially neutral reason,” but that it would not have to go further because of the asserted defects in defendant’s motion and showing.
“To establish a prima facie case of purposeful discrimination in jury selection under
Batson,
a defendant must show ‘that he is a member of a cognizable racial group, [Cit.] . . . that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race, . . . that these facts and any other relevant circumstances raise an inference that the prosecutor used [the]
*793
practice [of peremptory strikes] to exclude the veniremen from the petit jury on account of their race . . . Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors . . . (T)he prosecutor may not rebut the defendant’s case . . . merely by denying that he had a discriminatory motive . . . The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.’ [Cit.]”
Barton v. State,
The statistics, as “other relevant circumstances,” raise an inference of racial motive.
Aldridge v. State,
“Since the trial court did not require the prosecution to explain its use of its peremptory challenges, we remand the case to allow the State’s attorney to do so, after which the trial court shall make findings under
Batson.
See
Gamble v. State,
Case remanded with direction.