Lead Opinion
A jury convicted John Strickland of cruelty to children and child molestation. He appeals the judgment of conviction. For reasons which follow, we affirm.
1. Strickland contends that the trial court erred in denying his written request for a jury charge on the offense of sexual battery. He claims that on the facts of his case, sexual battery was a lesser included offense of child molestation as a matter of fact and that he was, therefore, entitled to a charge on that offense. We address this
Georgia law provides that a lesser offense can be included in a greater offense either as a matter of law or as a matter of fact. OCGA § 16-1-6; Messick v. State,
Unfortunately, our cases have been inconsistent regarding whether sexual battery can be a lesser included offense of child molestation as a matter of fact. While cases such as Duck v. State,
(a) A crime is a lesser included offense of the crime charged as a matter of fact when “[i]t is established by proof of the same or less
A person commits the offense of child molestation, a felony, when he or she “does any immoral or indecent act to or in the presence of or with any child under thé age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). In comparison, a person commits the offense of sexual battery, a misdemeanor, when he or she “intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.” OCGA § 16-6-22.1 (b). The elements of these two offenses clearly differ: child molestation requires specific intent, while sexual battery requires only general intent; child molestation includes non-physical conduct in the presence of a child under the age of 16 years, while sexual battery requires actual physical contact with a victim of any age.
As a result of the differences between these two offenses, it is possible to commit one offense without committing the other. For example, a person who engages in indecent acts in the presence of a child, but without actually touching the child, might be guilty of child molestation, whereas he would not be guilty of sexual battery. However, it is equally possible to engage in a single act which satisfies all of the elements of both offenses. For example, the act of fondling the genitalia of a 12-year-old child with only an inference of the intent to arouse sexual desires would satisfy all of the elements of both offenses. Yet, the substantive bar against double jeopardy would prohibit the State from convicting the defendant of both offenses on the basis of that singular act. See OCGA § 16-1-7 (a) (1); State v. Estevez,
The State, on the contrary, cites this Court’s opinion in Duck, supra, for the proposition that sexual battery is not, and presumably never can be, a lesser included offense of child molestation as a
Teasley held that the “indictment taken together with the evidence indicates that sexual battery was not a lesser included offense of child molestation in this case as a matter of fact” and that when the indictment and the evidence presented at trial does not warrant it, “it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense.” (Citation and punctuation omitted.) Id. at 720. Although broadly written, Teasley is a correct statement of the law when properly applied. See Messick, supra at 461; compare Bowers v. State,
Nevertheless, while Teasley is a correct statement of the law when properly applied, its broad language has been read to hold that sexual battery can never be a lesser included offense of child molestation as a matter of fact, regardless of the language of the indictment and the proof at trial. See Proper v. State,
Cases such as Landrum, that held a charge on sexual battery was not required based on an analysis of the evidence presented and not upon a rule that sexual battery could never be a lesser included
(b) While we have concluded that sexual battery can be a lesser included offense of child molestation as a matter of fact, we further conclude that sexual battery was not a lesser included offense in the present case given the evidence presented at trial. Consequently, we find that a charge on sexual battery was not required despite Strickland’s written request. Compare Alvarado, supra. “[E]ven if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well.” (Emphasis supplied.) Messick, supra at 460; see McCrary v. State,
In determining whether a lesser included offense charge is necessary under a given indictment, this Court is required to follow the most recent Supreme Court cases of Edwards v. State,
In this case, the facts contaiñed in the indictment for child molestation are sufficient to put Strickland on notice that he may be convicted of the lesser offense of sexual battery. The indictment in this case charges Strickland with child molestation in that he “did unlawfully . . . commit an immoral and indecent act to [the victim], a child under the age of 14 years, with intent to arouse and satisfy his own sexual desires by touching her breast with his hand. . . .” The indictment includes all of the necessary elements of sexual battery. “That is, charging defendant with [touching the breast of the victim] intentionally (i.e., with general criminal intent) would consti
However, the evidence presented at trial in this case did not support a charge on sexual battery. In this case, the victim’s testimony, if believed, would establish that Strickland committed the crime of child molestation, yet no evidence presented by either side would authorize a finding that Strickland committed the crime of sexual battery. According to the victim, Strickland would, among other things, ask her “for a pinch” of her breast and ask her if he could lick her breast. The victim further testified that Strickland told her “it felt good” when he fondled her. This evidence establishes all the elements of child molestation: an immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. OCGA § 16-6-4 (a).
“Where the evidence shows either the completed offense as charged or no offense, such evidence will not support a verdict for one of the lesser grades of the offense, and the court should not charge on the lesser grades of the offense.” Burley v. State,
2. Strickland next contends the trial court erred in instructing the jury regarding evidence of Strickland’s character. We disagree.
The trial court gave limiting instructions regarding the questions and answers and later charged the jury as follows: “The district attorney cross examined the character witness of the Defendant about certain matters which could or would affect the reputation and the character of the Defendant. This evidence can be used Only for the limited purpose of impeaching the testimony of the witness offering evidence of Defendant’s good character. This evidence can not be uáed in determining the guilt or innocence of the Defendant as to the crimes charged.” Later in the charge, the trial court defined evidence: “Evidence is the means by which any fact which is put in issue is established or disproved. Evidence includes the testimony of the witness dnd the exhibits admitted during the trial.”
There is no dispute that Strickland introduced evidence of good character through his witness. Therefore, it is clear the State was permitted to impeach Strickland’s character witness by asking questions related to bad acts committed by Strickland which the State could prove. See Clark, supra. Although the character witness stated he did not know of the bad acts and that the bad acts would not change his opinion, this testimony is still evidence which the jury may consider for impeachment purposes. Since the jury instruction is a correct statement of the law, and the charge as a whole would not mislead a jury of average intelligence, we find no error. Brown v. State,
3. Strickland also asserts the trial court erred in allowing testimony from an expert witness regarding the credibility of the victim. This enumeration miScharacterizes the testimony. Teresa Dean, who performed psychological evaluations on the victim, testified, “[the victim’s] reports were consistent each time she had been interviewed prior to my interview, basically cross time and cross interviewers she
First, Strickland failed to preserve this issue for appeal because he did not object to the testimony at trial. McGee v. State,
4. In his fourth enumeration of error, Strickland claims the trial court erred in allowing testimony in aggravation of punishment at thé presentence hearing when Strickland was not given notice of such evidence prior to the hearing. Citing OCGA § 17-10-2 (a), which provides that the only admissible evidence in aggravation is that which the State has made known to the defendant prior to trial, Strickland argues that the testimony was inadmissible. However, Strickland consented in advance to the trial court’s use of the probation report. Accordingly, we find this enumeration to be without merit.
5. In his final enumeration of error, Strickland asserts the evidence was insufficient to convict him. We disagree. The evidence presented was sufficient to sustain Strickland’s conviction. Jackson v. Virginia,
Judgment affirmed.
Notes
“[W]e recently ... held that the offense of sexual battery is not included in the offense of child molestation as a matter of law as ‘(t)he crimes of child molestation and sexhal battery have different elements and protect different classifications of victims.’ [Cit.] In Barnes v. State,
The majority decided Shepherd on other grounds and did not reach the issue of whether sexual battery was a lesser included offense as a matter of fact.
Although the majority in Duck made it clear that their holding pertained only to the facts of that particular case, several of this Court’s more recent opinions seem to support the State’s broader assertion. For example, in Flowers, supra at 817 (6), this Court held that the trial court erred in charging the jury that sexual battery was a lesser included offense of all the counts charged because “[sjexual battery is not a lesser included offense of child molestation.” (Emphasis in original.)
Similarly, in Perkins v. State,
We note that this decision does not address a factual situation where the jury must infer that the defendant was acting with the intent to arouse or satisfy the sexual desires of either the child or the defendant since there was unequivocal testimony in this case that Strickland told the victim “it felt good.”
Concurrence Opinion
concurring specially.
I agree that the majority’s analysis in Division 1 (a) is a correct application of the general law of lesser included offenses to the specific situation involving child molestation and sexual battery. Arid I agree with the conclusion in Division 1 (b) that there was no evidence of sexual battery in this case, even though proof of intent will generally depend on inference in the absence of an actual statement, of
Nonetheless, I deem it necessary to address the real problem presented in situations like this one: Although the statutes defining child molestation and sexual battery leave open the possibility that sexual battery may be a lesser included offense of child molestation as a matter of fact, it offends our sensibilities that the sexual touching of a child could be a misdemeanor. Moreover, it is totally illogical that the sexual touching of a child may warrant a charge on a misdemeanor offense, while the commission of an indecent act in the presence of a child must be a felony. Clearly this is not what the legislature intended when it failed to specify that the victim of a sexual battery should not be a child, and our efforts to avoid this offensive result have produced the somewhat inconsistent body of case law described by the majority.
The optimum solution would be for the legislature to redefine sexual battery to eliminate the possibility of a child victim. But in the meantime, a charge on sexual battery as a lesser included offense will have to be given upon request in some child molestation cases.
I am authorized to state that Senior Appellate Judge Harold R. Banke joins in this special concurrence.
Concurrence Opinion
concurring specially.
. I concur fully with the conclusion that the trial court did not erroneously refuse to give Strickland’s requested charge. Given this conclusion, I do not agree that this case is an Appropriate vehicle for discussion of whether sexual battery may be a lesser included offense of child molestation as a matter of fact. Had evidence been presented that Strickland committed sexual battery, a discussion of this issue would likely be necessary because our holding then would depend on the issue of whether sexual battery could ever be included in the offense of child molestation. The opinion notes, though, that the evidence demanded one of only two conclusions: Strickland was guilty “of child molestation or nothing.” As in Rash v. State,
Furthermore, I am concerned that the conclusion reached in Division 1 (a) might thwart the statutory scheme, embodied in OCGA §§ 16-6-3, 16-6-4, and 16-6-5, that protects children of tender years against sexual offenses. Although these statutes are mentioned in footnote 1, the opinion does not address and resolve the potential conflict of a holding that sexual battery may be a lesser included
I am authorized to state that Judge Andrews, Judge Johnson and Senior Appellate Judge Harold R. Banke join in this special concurrence.