A jury convicted Zorie W. Stuart of rape, aggravated child molestation, and child molestation, and the trial court sentenced him to life in confinement. Stuart argues on appeal that the trial court еrred in failing to instruct the jury that statutory rape is a lesser included offense of rape. For the reasons that follow, we affirm.
During the charge conference, the trial court reviewed each of Stuart’s requests to charge. In response to the court’s recitation of the requested charge “Lesser Offense, of Statutory Rape,”
On appeal, Stuart argues that the trial court erred in failing to instruct the jury that statutory rape is a lesser included charge of rape. “[U]nder OCGA § 17-8-58 (b), appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.” State v. Kelly,
Nonetheless, the appellate courts “will review properly enumerated and argued claims of jury instruction error regardless of whether the appealing party specifically casts the аlleged infirmity as ‘plain error,’ ” although failing to articulate how the alleged error satisfies the high standards required to establish plain error increases the likelihood that an appellate court will rеject the claim. State v. Kelly,
In conducting a plain error review, we consider first whether the record establishes “an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or аbandoned, i.e., affirmatively waived, by the appellant.” (Punctuation omitted.) State v. Kelly,
Here, the trial court did not err in failing to give the jury charge because “[statutory rape is not a lesser included offense of forciblе rape.” Mangrum v. State,
Stuart cites Hill v. State,
The ruling in Hill also conflicts with the Supreme Court of Georgia’s holding in Drinkard v. Walker,
As the Drinkard court noted, the crime of rape requires that the State prove that the defendant had carnal knowledge of the victim, forcibly and against her will. Id. at 213. Proof of force is not required, however, to prove the offense of statutory rape. Hightower v. State,
Although decided two years after Drinkard,
[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.
To the extent that King v. State,
Finally, in Dinkler v. State,
[t]he “required evidence” test applies strictly within the context of determining whether multiple convictions are precluded because one of the crimes was “established by proof of the same or less than all the facts” that were required to establish the other crime under OCGA § 16-1-6 (1).
Drinkard,
OCGA § 16-1-6 (1) (one crime is included in the other where it is established by “proof оf... a less culpable mental state”); OCGA § 16-1-6 (2) (one crime is included in the other where it differs only in that it involves a “less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culрability^’); and OCGA § 16-1-7 (a) (2) (precluding multiple convictions where one crime differs from another “only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct”).
Id. In this footnote, therefore, the Supreme Court was merely distinguishing the portion of OCGA § 16-1-6 (l)* 12*
The footnote was not intended to otherwise limit the application of the “required evidence” test in considering whether one crime is “established by proof of the same or less than all the facts” of the other, and does not preclude the application of the test when considering whether jury charges are appropriate. Therefore, Dinkier is overruled to the extent it holds otherwise.
Accordingly, as the trial court did not err in declining to chаrge the jury on the statutory rape, we affirm the convictions.
Judgment affirmed.
Notes
Stuart’s requests to charge consisted of a one-page list of еight pattern charges described by their section and title, which included charges on “Lesser Offense,” “Statutory Rape,” and “Statutory Rape; Corroboration of Victim.”
We note that Hill even cited Drinkard for another proposition of law. Hill,
The Hill opinion was quoting this Court’s case in Stulb v. State,
OCGA § 16-1-6 provides:
An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when:
(1) It 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
(2) It 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.