Morris v. StateMorris v. State
- Reporters:
- , ,
- Before:
- Banke
Morris appeals his convictions of enticing a child for indecent purposes (
The 12-year-old victim testified that, while she was at a lake with her 2-year-old brother, a man grabbed her by the wrist, pulled her to her feet, looked at her “private place,” turned her around, and stated, “This looks mighty fine.” She said the man then showed her a prophylactic and told her to open it, which she refused to do. He then pushed her backward toward his car, a distance of approximately 65 paces. The victim kicked and scratched the assailant and was thereby able to free herself. She then picked up her brother and ran home. Her family subsequently reported the incident to the police, and the girl was thereafter able to identify the perpetrator’s car. After a license check revealed that the car was registered to appellant, she identified him from a photographic display arranged by police. Appellant testified that he was not present at the lake on the day in question and that he had never seen the victim prior to trial. Held:
1. Appellant enumerates as error the trial court’s refusal to charge the jury on the offense of criminal attempt. “An attempt to commit a crime consists of three elements: first, the intent to commit the crime; second, the performance of some overt act towards the commission of the crime . . . , and third, a failure to consummate its commission. [Cit.]”
Howell v. State,
157 Ga. App. 451 (4) (278 SE2d 43) (1981). A person commits the offense of enticing a child for indecent purposes when he solicits, entices, or takes any child under the age of 14 to any place for the purpose of child molestation or indecent acts.
2. Appellant asserts that the trial court erroneously failed to charge the jury on the rebuttable presumptions that the acts of a sound person are wilful (
3. The appellant’s fourth enumeration of error involves matters raised for the first time on appeal. It is well settled that issues not raised in the court below will not be considered by this court. Cherry v. State, 174 Ga. App. 145 (5) (329 SE2d 580) (1985).
4. Appellant attacks his conviction for enticing a child based on the state’s alleged failure to prove the asportation element of the crime. In
Craighead v. State,
126 Ga. App. 300, 301 (190 SE2d 606) (1972), we defined the asportation element of the offense of theft as follows: “Any unlawful asportation, however slight... is sufficient to show the ‘taking’ element.” This same definition was later applied to the crime of kidnapping in
Brown v. State,
132 Ga. App. 399, 402 (208 SE2d 183) (1974). In the present case, we hold that the pushing of the victim a distance of approximately 65 paces was amply sufficient to satisfy the asportation element of
5. Appellant contends that
6. Appellant asserts that the conviction of simple battery should be set aside because it merged with the conviction of enticing a child.
“In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of [
In the present case, the evidence used to establish the offense of simple battery was to the effect that appellant grabbed the victim by the wrist and pulled her to her feet, causing her physical pain. The subsequent enticement for indecent purposes was established by appellant’s sexually suggestive remarks and glances directed at the victim, his handing her a prophylactic with orders to open it, and his pushing her backwards toward his car. Approximately 10 to 20 minutes elapsed from the initial grabbing until the victim was able to free herself. We hold that the jury was authorized to conclude under these circumstances that two separate and distinct offenses were committed. See generally Pryor v. State, 238 Ga. 698 (1) (234 SE2d 918) (1977).
Judgment affirmed.
Birdsong, P. J., and Sognier, J., concur.