Appellant was tried before a jury on a five-count indictment. The crimes charged were: Kidnapping; enticing a child for indecent purposes; child molestation; statutory rape; and, rape. At the close of the state’s evidence, the trial court directed a verdict of acquittal as to the rape count. The jury returned a verdict finding appellant guilty of the remaining four crimes. He appeals from the judgments of conviction and sentences.
1. The general grounds are enumerated as to each crime. The evidence, construed most strongly in support of the verdict, would authorize the following findings: Appellant, thirty-five years old, met the thirteen-year-old girl at a carwash and asked her for a date. She declined, telling appellant that, at thirteen, she “was too young to date.” For some reason, the child apparently also thought that appellant might be her father, having only recently learned that her adoptive father was not her natural parent. Subsequent to this initial meeting, the child and her sixteen-year-old aunt encountered appellant in a local shopping center. At this meeting, appellant asked the child for her telephone number. Also thinking that appellant might be the child’s father, her aunt wrote down the telephone number and gave it to appellant. Appellant called the child that night and asked if she “was going to get to come back to town.” The child told him no. A few days later, he called back. During this conversation, appellant arranged to pick the child up at her school “and go riding around.” The next morning, appellant drove to the child’s school and she got into his car., Appellant took the child to his house and, apparently with her consent, had sexual intercourse with her.
On this evidence, appellant attacks his conviction for kidnapping solely on the ground that the child willingly left the school grounds, entered his car and went with him to his house. The relevant statute, Code Ann. § 26-1311 (b), provides: “A person over the age of 17 commits kidnapping when he forcibly, maliciously, or fraudulently leads, takes, or carries away, or decoys or entices away, any child under the age of 16 years against the will of the child’s parents or other person having lawful custody.” The indictment alleged that appellant had violated this statute by “maliciously”
With regard to the crime of statutory rape, contrary to appellant’s assertions on appeal, the child’s testimony was sufficiently corroborated. See generally Jackson v. State,
Appellant contends that the child’s consent to sexual intercourse precludes a conviction for child molestation. “A person commits child molestation when he 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.” Code Ann. § 26-2019. “Together, Code Ann. §§ 26-2018 [statutory rape], 26-2019 [child molestation] and 26-2020 [enticing a child for indecent purposes] provide a general statutory scheme giving protection to both male and female children under the age of fourteen ...” Barnes v. State,
Likewise, the child’s consent would not vitiate appellant’s conviction for violating Code Ann. § 26-2020. That statute provides: “A person commits enticing a child for indecent purposes when he solicits, entices, or takes any child under the age of 14 to any place whatsoever for the purpose of child molestation or indecent acts ...” As discussed above, Code Ann. § 26-2020 is part of “a general statutory scheme” to protect underage children regardless of their “consent” to the prohibited act. The evidence would clearly authorize a finding that appellant, through his attention and telephone calls, solicited and enticed the child — known to appellant to be thirteen years old — into leaving the school grounds and going to his house for sex. See Peavy v. State,
After a review of the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt of the four crimes beyond a reasonable doubt. Jackson v. Virginia,
2. Appellant urges that the crimes of kidnapping and of enticing a child for indecent purposes merged as a matter of fact and that the trial court erred in sentencing him for both crimes. “Code Ann. §§ 26-505 and 26-506,. . ., [require] that although a defendant may be prosecuted for all crimes committed, he may not be convicted of more than one crime if the crimes charged are the same in law or fact. [Cits.]” Pryor v. State,
As discussed above, the crime of kidnapping was, in the instant case, against the rights of the child’s parents. Arrington,
3. Appellant asserts that the crime of child molestation merged with the crime of statutory rape. “An accused may be prosecuted for both rape and child molestation based upon the same conduct, but he may not be convicted of both. [Cits.] ” Lamar v. State,
4. The crime of enticing a child for indecent purposes is not included in the crime of statutory rape. Cf. Dennis v. State,
5. Appellant enumerates as error the denial of his motion to suppress evidence obtained after officers, acting without a warrant,
As noted above, however, probable cause to believe that appellant had or was committing an offense standing alone does not authorize a warrantless search of his dwelling. “ ‘[A]bsent exigent circumstances or consent, an entry into a private dwelling to conduct a search or effect an arrest is unreasonable without a warrant.’ [Cit.] ” Thompson v. State,
It was not error to deny appellant’s motion to suppress.
6. For the reasons discussed in Division 3, the judgment as to the child molestation count is reversed with direction that the conviction and sentence therefor be set aside. The judgments of conviction and sentences as to the remaining three counts are affirmed. See generally Roberts v. State,
Judgments affirmed in part and reversed with direction in part.