(Code 1981, §16-6-22.1, enacted by Ga. L. 1990, p. 1003, § 2; Ga. L. 2003, p. 573, § 1.1; Ga. L. 2006, p. 379, § 15/HB 1059.)
Cross references.- Actions for childhood sexual abuse, § 9-3-33.1.
Editor's notes.- Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;
"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;
"(3) Providing for community and public notification concerning the presence of sexual offenders;
"(4) Collecting data relative to sexual offenses and sexual offenders;
"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and
"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."
Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."
Law reviews.- For article, "The Georgia Roundtable Discussion Model: Another Way to Approach Reforming Rape Laws," see 20 Ga. St. U.L. Rev. 565 (2004). For note on 1990 enactment of this Code section, see 7 Ga. St. U. L. Rev. 258 (1990). For note on the 2003 amendment to this Code section, see 20 Ga. St. U. L. Rev. 84 (2003).
JUDICIAL DECISIONSANALYSIS
General Consideration
Validity of accusation.
- Although recitation of the statute may, in certain cases, be a sufficient, though not desirable, method of apprising a defendant of the charges against him, an accusation which did nothing more than reference the statute alleged to have been violated and recite some, but not all, of the elements of the crime of sexual battery was insufficient to constitute a valid accusation. D'Auria v. State, 270 Ga. 499, 512 S.E.2d 266 (1999).
Defendant waived any valid exception to the form of an indictment for sexual battery by failing to urge it in a timely written special demurrer. Haska v. State, 240 Ga. App. 527, 523 S.E.2d 589 (1999).
Skin to skin contact not required.
- Evidence of skin-to-skin contact was not required to prove that a defendant touched a victim's vagina or made physical contact with the victim's genital area as alleged in the indictment charging child molestation in violation of O.C.G.A. § 16-6-4 and sexual battery in violation of O.C.G.A. § 16-6-22.1(b). Evidence of contact with the victim's genital area through her panties was sufficient. Gunn v. State, 300 Ga. App. 229, 684 S.E.2d 380 (2009).
Lack of consent not contact is crucial issue.
- Offense under O.C.G.A. § 16-6-22.1(b), despite the offense's denomination as sexual battery, does not require any sexual contact at all; instead, the statute requires actual proof of the victim's lack of consent regardless of the victim's age and those cases holding to the contrary are overruled, namely: Haynes v. State, 302 Ga. App. 296, 302 (2010); Carson v. State, 259 Ga. App. 21 (2002); and Strickland v. State, 223 Ga. App. 772 (1996). Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Cited in In re Jackel, 275 Ga. 568, 569 S.E.2d 835 (2002); Thompson v. State, 277 Ga. 102, 586 S.E.2d 231 (2003); Williams v. State, 290 Ga. App. 841, 660 S.E.2d 740 (2008); Whitaker v. State, 293 Ga. App. 427, 667 S.E.2d 202 (2008); Floyd v. State, 293 Ga. App. 235, 666 S.E.2d 611 (2008); Sharma v. State, 294 Ga. App. 783, 670 S.E.2d 494 (2008); Marshall v. Browning, 310 Ga. App. 64, 712 S.E.2d 71 (2011); Stevens v. State, 329 Ga. App. 91, 762 S.E.2d 833 (2014); Cisneros v. State, 334 Ga. App. 659, 780 S.E.2d 360 (2015), aff'd, 792 S.E.2d 326 (Ga. 2016); State v. Randle, 298 Ga. 375, 781 S.E.2d 781 (2016); Robinson v. State, 342 Ga. App. 624, 805 S.E.2d 103 (2017).
Application
Relationship to federal sentencing.
- When a defendant pled guilty to violating 8 U.S.C. § 1326(a) and the defendant objected to a 16-level enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(iii) based on the defendant's conviction in Georgia of sexual battery of a victim under 16, in violation of O.C.G.A. § 16-6-22.1(d), the common definition of sexual abuse of a minor included as an element that the conduct be for a purpose associated with sexual gratification. However, the Georgia offense of sexual battery did not include that as an element; therefore, the Georgia crime of sexual battery under § 16-6-22.1 did not substantially correspond to the common definition of sexual abuse of a minor. United States v. Hernandez-Gonzalez, F. Supp. 2d (M.D. Ga. Jan. 31, 2012).
Child molestation and sexual battery.
- Even though the facts in an indictment for child molestation were sufficient to charge the lesser offense of sexual battery, when the evidence presented demanded a finding of child molestation or nothing, the trial court did not err by refusing to charge on sexual battery. Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Sexual battery can be a lesser included offense of child molestation in particular cases where the facts alleged in the indictment for child molestation also include all of the elements of sexual battery. Strickland v. State, 223 Ga. App. 772, 479 S.E.2d 125 (1996), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
When the jury by its verdict finds the defendant guilty of multiple offenses arising from the same conduct, the court does not err in convicting and sentencing the defendant for the greater offense after merging the lesser offenses into it. Conviction of both sexual battery and child molestation justified the merger of the battery offense into the molestation offense because the molestation offense was the greater offense; a defendant was properly sentenced as defendant's sentence was within the maximum prescribed for a first offense of child molestation. Dorsey v. State, 265 Ga. App. 597, 595 S.E.2d 106 (2004).
Because the evidence was sufficient to convict defendant of either sexual battery, in violation of O.C.G.A. § 16-6-22.1(b), or child molestation, in violation of O.C.G.A. § 16-6-4, the trial court was authorized to merge the lesser offense of sexual battery into the greater offense of child molestation. Webb v. State, 270 Ga. App. 817, 608 S.E.2d 241 (2004).
In a trial on a charge of child molestation, O.C.G.A. § 16-6-4(a), the trial court did not err by refusing to instruct the jury on sexual battery, O.C.G.A. § 16-6-22.1(b), as a lesser included offense, because under the facts of the case, which alleged that the defendant sexually abused a six-year-old child, the evidence presented to the jury offered the choice between the completed crime of child molestation or no crime. Howell v. State, 278 Ga. App. 634, 629 S.E.2d 398 (2006).
Since the question whether defendant committed sexual battery was not posed by the evidence presented, the trial court did not err when it refused to charge the jury on sexual battery as a lesser included offense of child molestation. Walker v. State, 279 Ga. App. 749, 632 S.E.2d 482 (2006).
There was no evidence warranting a charge of sexual battery in the defendant's sexual molestation case, and the defendant's strategy was to attack the credibility of the victim; because the evidence did not authorize a charge on sexual battery as a lesser included offense, the defendant was not prejudiced by counsel's failure to request a charge on the same. McGruder v. State, 279 Ga. App. 851, 632 S.E.2d 730 (2006).
Defendant's motion to sever a public indecency charge from sexual battery charges was properly denied as there was sufficient evidence that the charges constituted a single scheme or plan to prey upon young victims and to satisfy the defendant's prurient desires since: (1) the sexual batteries and the public indecency all took place within a month's period of time and within a five-mile radius; (2) the three victims were between the ages of 20 and 29; (3) the defendant approached each victim in a public place and, after attempting to engage them in conversation of a sexual nature, behaved in a sexually aggressive manner; and (4) in one instance of sexual battery and in the public indecency incident, the defendant offered the victims money and fondled the defendant. Harmon v. State, 281 Ga. App. 35, 635 S.E.2d 348 (2006), cert. dismissed, No. S07C0386, 2007 Ga. LEXIS 137 (Ga. 2007).
Because the defendant denied any contact with the victim, the trial court did not err in not charging on sexual battery as a lesser included offense of child molestation. Hilliard v. State, 298 Ga. App. 473, 680 S.E.2d 541 (2009).
Defendant's conviction for sexual battery by touching the victim's genital area merged with the defendant's conviction for child molestation by touching the victim's vagina, and defendant's conviction for sexual battery by touching the victim's breast merged with defendant's conviction for child molestation by touching the victim's breast. Therefore, the trial court erred in imposing a separate sentence on the jury's verdicts on these sexual battery counts. Gunn v. State, 300 Ga. App. 229, 684 S.E.2d 380 (2009).
Trial court properly declined to merge a sexual battery offense, O.C.G.A. § 16-6-22.1(b), into a chld molestation offense under O.C.G.A. § 16-6-4. The sexual battery was established by evidence that the defendant touched the 15-year-old victim's breasts, and the child molestation proof included evidence of the separate act of touching the victim's stomach. Haynes v. State, 302 Ga. App. 296, 690 S.E.2d 925 (2010), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Victim's testimony that the defendant pulled down the victim's pants, reached into the victim's underwear, fondled the victim's genitals, and touched them with the defendant's penis was sufficient to support the defendant's convictions for sexual battery and child molestation. Reid v. State, 319 Ga. App. 782, 738 S.E.2d 624 (2013).
Defendant's act of touching the minor victim's buttocks, intentionally, without consent, constituted the offense of sexual battery under O.C.G.A. § 16-6-22.1. Latta v. State, 341 Ga. App. 696, 802 S.E.2d 264 (2017), cert. denied, 2017 Ga. LEXIS 1021 (Ga. 2017), cert. denied, 138 S. Ct. 1582, 2018 U.S. LEXIS 2291, 200 L. Ed. 2d 768 (U.S. 2018).
Lesser included offenses.
- Sexual battery was not a lesser included offense of statutory rape as a matter of law, and because the indictment charging defendant with statutory rape was narrowly drawn and the evidence did not support instructions allowing the jury to find defendant guilty of sexual battery or simple battery, the trial court did not err when it denied defendant's request to instruct the jury that sexual battery and simple battery were lesser included offenses of statutory rape. Neal v. State, 264 Ga. App. 311, 590 S.E.2d 168 (2003).
As the defendant agreed at the charge conference, under the facts of the case, no evidence supported a charge on sexual battery as a lesser included offense of rape; the evidence concerning the rape was obviously conflicting as the first victim testified that the defendant raped the victim but the defendant testified that the defendant did nothing wrong, thus, a lesser included offense charge was not warranted. Quenga v. State, 270 Ga. App. 141, 605 S.E.2d 860 (2004).
When the defendant was charged with sexual battery under O.C.G.A. § 16-6-22.1, the trial court properly refused to instruct on simple battery under O.C.G.A. § 16-5-23(a) as a lesser included offense. The defendant claimed that the victim had placed the defendant's hand on the outside of her clothing over her vagina, and simple battery required intentional contact. Engle v. State, 290 Ga. App. 396, 659 S.E.2d 795 (2008), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Defendant was charged with child molestation and aggravated child molestation under O.C.G.A. § 16-6-4; the defendant denied having any sexual contact with the child and defense counsel argued that the charges were fabricated by the child's parent. As the evidence showed either the commission of the indicted crimes or no crimes at all, the defendant was not entitled to a charge on the lesser included offense of sexual battery under O.C.G.A. § 16-6-22.1(b). Linto v. State, 292 Ga. App. 482, 664 S.E.2d 856 (2008).
No merger with rape.
- Since the evidence established that both sexual battery and rape occurred, and evidence of neither offense was necessary to prove the other, there was no merger, and the trial court did not err in sentencing defendant for both convictions. Trotter v. State, 248 Ga. App. 156, 546 S.E.2d 286 (2001).
Evidence was sufficient to authorize the jury to find the appellant guilty of sexual battery as a party to the crime because the evidence showed that the appellant, together with several co-indictees, planned and executed the armed robbery and burglary, that the appellant acted as a driver and lookout while the others directly participated in those crimes, and that one co-conspirator committed a sexual battery while in the victims' home. Cisneros v. State, 299 Ga. 841, 792 S.E.2d 326 (2016).
Similar transactions evidence properly admitted.
- In a child molestation and aggravated sexual battery prosecution, evidence that before assaulting certain victims, defendant grabbed the victim by the back of the victim's hair or held the victim's neck, was properly admitted as "other transactions" evidence, since defendant used a similar method to control the child victim before sexually assaulting the child; this evidence was relevant to show defendant's course of conduct and rebut defendant's defense of fabrication. That the prior acts involved adults did not preclude their admission as similar transactions. Helton v. State, 268 Ga. App. 430, 602 S.E.2d 198 (2004).
Trial court properly admitted similar transaction evidence to show a defendant's course of conduct and intent in the defendant's trial for public indecency and sexual battery as in each of the similar transactions, defendant approached someone previously unknown to the defendant in a public place, attempted to talk to the person, and then engaged in sexually inappropriate behavior; in the sexual battery incidents and one similar transaction, the defendant either bit or licked the victims on their buttocks while the victims were shopping and in the public indecency incident and two of the similar transactions, the defendant exposed the defendant's person. Harmon v. State, 281 Ga. App. 35, 635 S.E.2d 348 (2006), cert. dismissed, No. S07C0386, 2007 Ga. LEXIS 137 (Ga. 2007).
In a sexual battery case involving a 13-year-old victim, the trial court properly admitted evidence of a similar transaction regarding a 12-year-old girl. The trial court found that both incidents involved girls of a similar age who developed some sort of romantic relationship with the defendant and that the incidents occurred at the same residence and at about the same time. Engle v. State, 290 Ga. App. 396, 659 S.E.2d 795 (2008), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Trial court properly admitted similar transaction evidence during the defendant's trial for aggravated child molestation, aggravated sexual battery, and child molestation because despite the defendant's age at the time, the evidence was relevant to show the defendant's lustful disposition with regard to younger females, the conduct with which the defendant was charged; the trial court properly considered the defendant's youth at the time of the similar transaction, along with the significant age difference between the defendant and the victim, the defendant's attempt to conceal the defendant's behavior by acting in secluded locations, and the nature of the acts the defendant committed before concluding that the evidence was admissible. Ledford v. State, 313 Ga. App. 389, 721 S.E.2d 585 (2011).
Anatomically correct description not required.
- When the three-year-old victim stated to outcry witnesses that defendant touched the victim's private with defendant's finger, that defendant's finger "went in the hole thing," and that it hurt, this was evidence of penetration sufficient to cause pain and was sufficient to support defendant's conviction of aggravated sexual battery. The child victim's inability to anatomically describe the sexual acts would not inure to the benefit of the abuser. Helton v. State, 268 Ga. App. 430, 602 S.E.2d 198 (2004).
Sexual battery during job interview.
- Evidence was sufficient to authorize the trial court to find that the defendant committed the offense of sexual battery because, after interviewing the victim for an employment position and denying the victim the position, the defendant told the victim that the defendant was going to give the victim a bonus, approached the victim, with money in hand, walked behind the victim, pulled the victim's pants and underwear away from the victim's body, and moved a hand downward, trying to put the money in the victim's pants; the defendant made physical contact with the victim's buttocks; and the trial court could infer from the defendant's actions that the defendant acted with the intent to make physical contact with the victim's buttocks. Kea v. State, 344 Ga. App. 251, 810 S.E.2d 152 (2018).
Evidence sufficient for delinquency adjudication.
- Evidence was sufficient to adjudicate the juvenile for felony sexual battery in violation of O.C.G.A. § 16-6-22.1; the juvenile court was faced with sufficient evidence to find that the juvenile was responsible for a sexual battery against the victim, who was a classmate of the defendant's and under the age of 16, by intentionally making unwanted physical contact with the victim's breast; the juvenile court was faced with conflicting testimony as to what occurred between the victim and the juvenile, and conflicts in the testimony were a matter of credibility for the trier of fact to resolve. In the Interest of D.D., 310 Ga. App. 329, 713 S.E.2d 440 (2011).
Evidence insufficient for delinquency adjudication.
- Because the evidence established that the juvenile's act of sexual battery was committed against the victim, who was under the age of 16 years, felony punishment under O.C.G.A. § 16-6-22.1(d) was required and the juvenile was not entitled to a delinquency adjudication for misdemeanor sexual battery under § 16-6-22.1(c) since if the Georgia legislature intended to provide more lenient treatment for teenagers who commit sexual battery against another minor, the legislature could have amended the statute and the appellate court refused to usurp the role of the legislature. In the Interest of P. T., 353 Ga. App. 511, 838 S.E.2d 596 (2020).
Respiratory therapist guilty of sexual battery.
- Evidence that the defendant, a respiratory therapist, touched the breast, buttocks, and genital area of the victims without the victim's consent supported the defendant's convictions for sexual battery. Ellis v. State, 324 Ga. App. 497, 751 S.E.2d 129 (2013).
Evidence sufficient for conviction.
- See Touchton v. State, 210 Ga. App. 700, 437 S.E.2d 370 (1993); Ouzts v. State, 216 Ga. App. 194, 453 S.E.2d 801 (1995); Green v. State, 218 Ga. App. 648, 463 S.E.2d 133 (1995); Lumsden v. State, 222 Ga. App. 635, 475 S.E.2d 681 (1996); McGriff v. State, 232 Ga. App. 546, 502 S.E.2d 482 (1998), overruled on other grounds, Wallace v. State, 275 Ga. 879, 572 S.E.2d 579 (2002); Thompson v. State, 245 Ga. App. 396, 537 S.E.2d 807 (2000).
Evidence was sufficient to support the defendant's convictions of sexual battery and child molestation after the child victim indicated that the defendant had placed his mouth or tongue on her vagina, that the defendant had placed his penis in her mouth, and that the little girl had complained of physical pain and suffered apparent emotional distress. Clark v. State, 234 Ga. App. 503, 507 S.E.2d 241 (1998).
Evidence was sufficient to convict defendant of sexual battery and child molestation, even though the defendant was acquitted of rape, where the 13-year old victim testified that the defendant pulled off the victim's shorts and forced the defendant's genitals into the victim's genitals despite the victim's protests. The jury was entitled to believe the victim's testimony in whole or in part, and it could have concluded that the defendant placed the defendant's genitals on the victim's genitals (as alleged in the child molestation indictment), but that no penetration occurred, so there was no rape. Dorsey v. State, 265 Ga. App. 597, 595 S.E.2d 106 (2004).
Evidence in an initial trial that defendant fondled the victim's breasts and placed a finger inside the victim's genitals, both without the victim's consent, was sufficient to sustain the defendant's convictions for sexual battery pursuant to O.C.G.A. § 16-6-22.1, and aggravated sexual battery pursuant to O.C.G.A. § 16-6-22.2(b); thus, double jeopardy did not prohibit a retrial granted on the ground that defendant received ineffective assistance of counsel. Weldon v. State, 270 Ga. App. 574, 607 S.E.2d 175 (2004).
Evidence supported defendant's conviction for rape and sexual battery as the victim testified that the victim was raped by someone who entered the victim's home while a friend was visiting and the friend identified defendant as the person who entered the home when the friend was visiting. Powell v. State, 272 Ga. App. 628, 612 S.E.2d 916 (2005).
Evidence sufficed to support a finding of delinquency for an act which would have been sexual battery had the act been committed by an adult, O.C.G.A. § 16-6-22.1(b), since the victim's grandparent saw the victim, age 4, straddling the juvenile, age 12, and sweating as the juvenile held the victim and moved back and forth under the victim, despite the juvenile's claim that the victim voluntarily jumped into the juvenile's lap. In the Interest of Z.H., 278 Ga. App. 490, 629 S.E.2d 486 (2006).
Juvenile adjudication of sexual battery was supported by sufficient evidence that the victim was walking near the victim's home when the victim saw two young persons riding bicycles, that one of the youths ran up behind the victim, grabbed the victim's breasts, crotch, and buttocks, and tried to push the victim down, that the victim turned around and looked at the young person, whom the victim later identified as appellant, that the victim then screamed and ran home, that the victim immediately drove around the neighborhood with the victim's love interest looking for the attacker, that within two or three minutes of the attack, the victim saw the attacker riding a bicycle, that the victim yelled at the person, then followed the young person home, that the victim then contacted the police, who took the victim to the young person's home, where the victim identified appellant as the attacker. In the Interest of J.L.B., 280 Ga. App. 556, 634 S.E.2d 514 (2006).
Convictions for kidnapping, aggravated sexual battery, sexual battery, and attempted rape were all upheld on appeal as a photo lineup was not impermissibly suggestive, similar transaction evidence was properly admitted, the defendant had notice of the evidence, and the jury was authorized to find the victim credible and to accept the victim's testimony; hence, a rational trier of fact could have found from the evidence presented that the defendant committed the charged crimes beyond a reasonable doubt. Watley v. State, 281 Ga. App. 244, 635 S.E.2d 857 (2006).
There was sufficient evidence, including testimony by the victim and similar transaction evidence involving incidents that took place years before, to support a defendant's convictions of sexual battery, child molestation, and aggravated child molestation; the victim, who testified to various acts the defendant performed upon the victim, stated when confronted with inconsistencies in the victim's testimony that the victim had been on drugs during that period because the victim was trying to forget everything, and any inconsistencies in the victim's testimony were for the jury to resolve. Boynton v. State, 287 Ga. App. 778, 653 S.E.2d 110 (2007).
There was sufficient evidence to support a defendant's convictions for rape, aggravated sodomy, kidnapping, burglary, and misdemeanor sexual battery based on the similar transaction evidence produced by the state, the fact that the defendant's DNA was found in the victims' beds, and that the defendant's identity was established, all of which sufficiently linked the defendant to the crimes beyond a reasonable doubt. Goolsby v. State, 299 Ga. App. 330, 682 S.E.2d 671 (2009).
Based on the facts, the jury was authorized to find the defendant guilty of sexual battery in violation of O.C.G.A. § 16-6-22.1 because the victim, who was the defendant's nine-year-old neighbor, testified that the defendant touched the victim on the private part; the testimony of one witness was sufficient to sustain a verdict, and the victim's testimony was sufficient. Hamrick v. State, 304 Ga. App. 378, 696 S.E.2d 403 (2010).
Defendant was properly convicted of armed robbery, burglary, aggravated assault, and sexual battery because two codefendants testified that the defendant participated in a home invasion and robbery, and that testimony was sufficient to convict the defendant. Martinez v. State, 306 Ga. App. 512, 702 S.E.2d 747 (2010).
Evidence was sufficient to support the defendant's convictions for armed robbery, burglary, aggravated assault, criminal attempt to commit armed robbery, criminal attempt to commit burglary, and sexual battery because two codefendant's testified that the defendant participated in the home invasion, and that testimony was sufficient to sustain the defendant's conviction for the crimes committed at the home. Martinez v. State, 306 Ga. App. 512, 702 S.E.2d 747 (2010).
Trial court did not err in convicting the defendant of rape, O.C.G.A. § 16-6-1(a)(1), sexual battery, O.C.G.A. § 16-6-22.1(b), aggravated battery, O.C.G.A. § 16-5-24(a), and assault, O.C.G.A. § 16-5-20(a)(1), because the victim's testimony that the defendant raped, sodomized, punched, burned, and threatened to kill the victim was sufficient to authorize the defendant's convictions. Harris v. State, 308 Ga. App. 523, 707 S.E.2d 908 (2011).
Defendant was not entitled to a directed verdict of acquittal on the charge of sexual battery because the defendant did not object when the third victim testified that the defendant touched the victim and made a gesture and the prosecution requested that the record reflect that the victim pointed to the victim's breast; thus, there was sufficient evidence to support the conviction. Ogletree v. State, 322 Ga. App. 103, 744 S.E.2d 96 (2013).
Based on the victim's testimony that the victim could not tell the defendant, the victim's step-father, out of fear, a rational trier of fact could have concluded that the defendant committed the acts of sexual battery without the consent of the victim. Madison v. State, 329 Ga. App. 856, 766 S.E.2d 206 (2014).
Evidence was sufficient to convict the defendant of aggravated child molestation, rape, incest, and two counts of sexual battery because the defendant, the victim's father, began touching the victim's breasts and genital area when the victim was 14 years old; the defendant's actions escalated to vaginal intercourse after the victim turned 15; the victim told the defendant the intercourse was painful, but the defendant persisted; the victim testified that the victim did not desire or consent to the sexual activity with the defendant; and the victim's testimony was corroborated by the medical evidence that the victim's genital area appeared abnormal in ways consistent with the victim's account. Tinson v. State, 337 Ga. App. 83, 785 S.E.2d 914 (2016).
After three victims each testified that the defendant had physical contact with their penis without their consent, and the evidence supported a finding that the defendant acted with intent in doing so, that and other evidence at trial was sufficient to affirm the defendant's convictions for sexual battery. Jones v. State, 354 Ga. App. 568, 841 S.E.2d 112 (2020).
Evidence that, without the victim's permission, the defendant put the defendant's hands between the victim's legs, then moved them over the victim's buttocks and breasts and said, "if I wanted to I could get you there" was sufficient to support the defendant's conviction for felony sexual battery. Jones v. State, 307 Ga. 505, 837 S.E.2d 288 (2019).
Testimony from the victim that the defendant touched the victim, that the defendant touched the victim's chest, and that the defendant used the defendant's hand and mouth and evidence in the form of the victim's forensic interview that the defendant touched the victim's vaginal area with the defendant's hand was sufficient to find the defendant guilty of child molestation and sexual battery. Reyes v. State, Ga. App. , S.E.2d (Aug. 6, 2020).
Few seconds touching sufficient.
- Victim's testimony that the defendant rubbed the victim's "front bottom private area" over the victim's clothing for a few seconds was sufficient to support the defendant's conviction for sexual battery. West v. State, 339 Ga. App. 279, 793 S.E.2d 180 (2016).
Right to privacy not violated.
- Because the 13-year-old victim in a sexual battery case was under the age when the victim could legally consent to sexual conduct, prosecution of the defendant did not violate the defendant's right to privacy for consensual touching within the context of their boyfriend/girlfriend relationship. Engle v. State, 290 Ga. App. 396, 659 S.E.2d 795 (2008), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Testimony of adult witnesses about similar offenses.
- Trial court did not abuse the court's discretion in admitting testimony regarding the appellant's prior acts of sexual assault because that evidence was relevant to the appellant's intent, identity, and propensity and three other family members testified that the appellant engaged in the same conduct of rubbing their genitals and inserting the defendant's finger into their vaginas when the witnesses were the same age as the victim, which testimony was relevant to show the appellant's propensity and that it was the appellant who molested the victim. Dixon v. State, 350 Ga. App. 211, 828 S.E.2d 427 (2019).
Evidence of victim's sexual activity admissible.
- Defendant's convictions for child molestation in violation of O.C.G.A. § 16-6-4(a) and sexual battery in violation of O.C.G.A. § 16-6-22.1(b) were vacated because the trial court erred by applying former O.C.G.A. § 24-2-3(a) (see now O.C.G.A. § 24-4-412) to the case and striking the testimony regarding the victim's previous alleged sexual conduct with the victim's brother based on the court's conclusion that the rape shield statute prohibited the defendant from presenting evidence regarding the victim's prior sexual history, and the error in excluding the evidence of the victim's prior sexual history could have contributed to the jury's verdict since the only direct evidence of the defendant's guilt was the victim's testimony that the defendant sexually abused the victim; former O.C.G.A. § 24-2-3, as the former statute was written, did not apply to prosecutions for child molestation or sexual battery. Robinson v. State, 308 Ga. App. 562, 708 S.E.2d 303 (2011).
Counsel not ineffective for failure to call wife as witness.
- On appeal from convictions on one count of aggravated sexual battery and two counts of sexual assault, the trial court did not err in denying the defendant's motion for a new trial as the defendant failed to show that any prejudice resulted from counsel's failure to call the defendant's wife to testify for the defense, and the appeals court refused to speculate that the testimony would have led to an acquittal. Lee v. State, 286 Ga. App. 368, 650 S.E.2d 320 (2007).
Defense counsel not ineffective.
- As to the defendant's convictions for child molestation, sexual battery, and enticing a child for indecent purposes, the defendant failed to establish that trial counsel's performance prejudiced the defense for failing to investigate the victim receiving prior parental discipline as trial counsel got the victim to admit to being afraid of getting into trouble for coming home late on the night of the incident. Carstaffin v. State, 323 Ga. App. 354, 743 S.E.2d 605 (2013).
Ineffective assistance of counsel warrants new trial.
- Trial court did not abuse the court's discretion in granting the defendant a new trial based on the ineffective assistance of trial counsel as: (1) counsel's pretrial investigation was deficient; (2) counsel made no effort to investigate or to obtain the criminal records of the state's similar transaction witness before trial, and did not ask for more time or a continuance upon learning that the defendant did not have the records; (3) the defendant pointed out that the jury had doubts about the victim's testimony based on their verdict of guilt to sexual battery, as a lesser-included offense of child molestation, the crime the defendant was charged with committing; (4) there was evidence that the victim had reason to lie; (5) the charged incident was not reported until after the defendant's wife hired a divorce lawyer, who then arranged the first interview between the victim and investigators; and (6) given that the evidence against the defendant was not overwhelming, this impeachment evidence was particularly crucial. State v. Lamb, 287 Ga. App. 389, 651 S.E.2d 504 (2007), overruled on other grounds, O'Neal v. State, 285 Ga. 361, 677 S.E.2d 90 (2009).
Jury Instructions
Erroneous charge on punitive consequences.
- Trial court erred in instructing the jury of the misdemeanor rating of sexual battery as this introduced the impermissible factor of the potential severity of punishment into the deliberations. Green v. State, 206 Ga. App. 539, 426 S.E.2d 65 (1992).
Charge as to state's burden of proof.
- Trial court correctly charged the jury as to the rape count of the indictment and its lesser included offenses of statutory rape and sexual battery and properly instructed the jury as to the state's burden to prove the defendant's guilt beyond a reasonable doubt, substantially in accordance with the pattern charge because there was no objectionable summary of the reasonable doubt standard as an honest belief, and while the best practice would not have been to employ the word "believe" in the court's charge, the trial court did not improperly summarize the burden of proof or otherwise confuse the jury in doing so; the trial court made no attempt to summarize the court's reasonable doubt charge as an honestly held belief or to otherwise explain it, and twice after giving the charge, the trial court made reference to the court's reasonable doubt charge as initially given by instructing the jury that the jury could convict the defendant of rape and child molestation if the jury believed beyond a reasonable doubt that the defendant was guilty thereof. Alexander v. State, 308 Ga. App. 245, 707 S.E.2d 156 (2011).
Instruction as to consent by person under 16.
- In a sexual battery case involving a 13-year-old victim, the defendant's sufficiency of the evidence argument failed as the argument was premised on the erroneous argument that the victim had the legal capacity to consent to the touching. Engle v. State, 290 Ga. App. 396, 659 S.E.2d 795 (2008), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Defendant's convictions for sexual battery had to be reversed because the trial court's jury instruction that an underage victim was not legally capable of consenting to sexual conduct was on its face an accurate statement of the law, but that statement regarding consent to sexual conduct did not belong in the jury instruction regarding sexual battery since sexual battery as defined in O.C.G.A. § 16-6-22.1(b) did not necessarily involve sexual conduct. Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Victim under the age of 16 cannot legally consent to sexual intercourse, sexual acts, or other sexual contact, and proof that a victim was younger than age 16 at the time of an alleged offense involving sexual contact, absent any specific statutory language to the contrary, will constitute conclusive proof of the lack-of-consent element of such offense. Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).
Charge on sexual battery not warranted.
- Although some evidence showed that the defendant, convicted of aggravated sexual battery under O.C.G.A. § 16-6-22.2(b), touched the victim's vagina without penetration, the defendant was not entitled to a jury instruction on the lesser included offense of sexual battery under O.C.G.A. § 16-6-22.1 because the defendant's defense was that the victim fabricated her claims. Smith v. State, 310 Ga. App. 392, 713 S.E.2d 452 (2011).
Since the evidence presented to the jury offered the choice between the completed crime or no crime, the trial court was not required to charge on sexual battery as a lesser offense of child molestation. Hahn v. State, Ga. App. , 846 S.E.2d 258 (2020).
Trial court did not err in refusing to give a jury instruction on sexual battery as a lesser-included offense of child molestation because the defendant pointed to no evidence demonstrating that a touch occurred without the necessary intent for child molestation as the state presented evidence suggesting that the defendant asked the victim, a child under the age of 16 years, to be the defendant's girlfriend, would sometimes touch the victim after the victim got out of the shower, engaged in tongue-kissing with the victim, and had the victim touch the defendant's penis; and the evidence demonstrated either that the indicted crime or no crime at all occurred. Solis-Macias v. State, Ga. App. , S.E.2d (Sept. 4, 2020).
Sequential charge on rape and sexual battery was not improper and did not constitute plain error as the evidence did not support a sexual-battery conviction; and there was no language in the challenged instruction on rape and sexual battery suggesting that the jury was required to reach a unanimous verdict as to rape before considering the lesser-included offense of sexual battery. Seals v. State, 350 Ga. App. 787, 830 S.E.2d 315 (2019).
After the defendant was convicted of two counts of rape, the defendant could not show that the defendant was harmed when the trial court failed to notify trial counsel of the court's ruling on the sexual-battery charge before closing arguments, much less plain error, because the defendant could not be found guilty of rape or sexual battery if the jury believed the defense that the defendant had consensual sex with the victims and the victims fabricated the rape allegations; and an argument that the defendant was guilty of sexual battery instead of rape would have been in direct conflict with the defendant's own theory of defense. Seals v. State, 350 Ga. App. 787, 830 S.E.2d 315 (2019).
Jury charge erroneous for failing to limit charge to manner of touching alleged in indictment.
- Defendant's conviction for sexual battery was reversed because both the trial court's charge and recharge on sexual battery were erroneous given the court's failure to limit the charge to the manner of touching alleged in the indictment. Henderson v. State, 333 Ga. App. 759, 777 S.E.2d 48 (2015).
Failure to request instruction on consent.
- Trial counsel was not ineffective for failing to request a jury instruction on consent because, notwithstanding the trial court's failure to specifically charge the jury regarding consent, the court did instruct that to prove sexual battery, the state was required to prove that the defendant made physical contact with the victim's breasts without the victim's consent; and to prove false imprisonment, the state had to establish that the defendant detained the victim without legal authority. Orengo v. State, 339 Ga. App. 117, 793 S.E.2d 466 (2016), overruled on other grounds, White v. State, 305 Ga. 111, 823 S.E.2d 794, 2019 Ga. LEXIS 66 (2019).
No plain error found.
- Trial court erred in granting the defendant's motion for new trial as the jury charge, taken as a whole, adequately informed the jury of the charges and did not constitute plain error because, for purposes of plain-error analysis, the charge included both the oral and written instructions given to the jury; the defendant failed to show that the omission of any oral instructions on the elements of sexual battery likely affected the outcome of the proceedings; the indictment, including the elements of the sexual battery charge, was read to the jury; the jury was instructed that the jury had to find each element in the indictment beyond a reasonable doubt; and the indictment was sent into the jury room. State v. Crist, 341 Ga. App. 411, 801 S.E.2d 545 (2017).
Jury instruction error not plain error.
- Defendant's conviction for aggravated sexual battery was reinstated because the jury instruction error did not constitute plain error as if the jury had been instructed that the state had to prove lack of consent, no rational juror could have concluded, based on the record presented at trial, that the state failed to prove that element in the case since the victim was the defendant's four-year-old granddaughter. State v. Williams, 308 Ga. 228, 838 S.E.2d 764 (2020).
Sentence
Sentence was proper.
- Defendant's sentence to 10 years for false imprisonment, 12 months for sexual battery, and 12 months for simple battery, to run concurrently, provided that upon service of four years in custody, defendant could serve the remaining six years on probation, was not void as it fell within the allowable sentencing ranges of no less than one nor more than 10 years for false imprisonment, and up to 12 months each for sexual battery and simple battery. Rehberger v. State, 267 Ga. App. 778, 600 S.E.2d 635 (2004).
Defendant was properly sentenced for felony sexual battery under O.C.G.A. § 16-6-22.2(d) because any error from a lack of a specific factual finding as to the victim's age was harmless since the mother testified without challenge as to the victim's age and the jury viewed a videotaped interview of the five year old victim, which showed that the victim was younger than 16 years old. Hernandez v. State, 300 Ga. App. 792, 686 S.E.2d 373 (2009).
After the defendant was convicted of four counts of possession of child pornography, the defendant, who pled guilty to two counts of misdemeanor sexual battery in violation of O.C.G.A. § 16-6-22.1, had two prior convictions that triggered a mandatory minimum sentence of ten years' imprisonment pursuant to 18 U.S.C. § 2252A(b)(2) because, applying the categorical approach, the Georgia sexual battery statute readily qualified as an offense relating to sexual abuse. United States v. Hebert, 888 F.3d 470 (10th Cir. 2018).
Imposition of three concurrent five-year probated sentences as a first offender was not grossly disproportionate to the gravity of the offense of felony sexual battery and, thus, the defendant's claim that the sentence amounted to cruel and unusual punishment failed. Jones v. State, 307 Ga. 505, 837 S.E.2d 288 (2019).
Probation condition overbroad and vague.
- Upon convicting the defendant of sexual battery under O.C.G.A. § 16-6-22.1, special probation conditions 4, 5, and 6 were erroneously imposed as those conditions lacked reasonable specificity and encompassed groups and locations not rationally related to the sentencing objectives and failed to give the defendant notice of either the conduct or the groups the defendant must avoid. Grovenstein v. State, 282 Ga. App. 109, 637 S.E.2d 821 (2006).
Sentence improper when wrong version of section cited.
- Defendant's sentence to five years imprisonment pursuant to the amended version of O.C.G.A. § 16-6-22.1, with regard to defendant's conviction for sexual battery against a child under the age of 16 years, without specific jury finding that conduct for which defendant was convicted occurred after the amendment, was erroneous and required defendant's sentence to be vacated and remanded to the trial court for resentencing; the trial court should have required the special verdict form that addressed both defendant's pre-amendment and post-amendment conduct to avoid a potential ex post facto violation. Forde v. State, 289 Ga. App. 805, 658 S.E.2d 410 (2008).
Merger required with child molestation counts.
- Defendant's conviction and sentence for sexual battery were vacated because the state conceded that Counts 1 and 2 of the February 2013 indictment were predicated on the same act of touching the victim's breast and vagina; therefore, the convictions on those counts should have merged with the child molestation counts for sentencing purposes. Mosby v. State (two cases), 353 Ga. App. 744, 839 S.E.2d 237 (2020).
OPINIONS OF THE ATTORNEY GENERAL
Fingerprinting required for violation of Code section.
- Violation of the offense defined by O.C.G.A. § 16-6-22.1 is designated as an offense for which those charged with a violation are to be fingerprinted. 1990 Op. Att'y Gen. No. 90-22.
RESEARCH REFERENCES
ALR.
- Construction and application of "crime of violence" provision of U.S.S.G. § 2L1.2 pertaining to unlawfully entering or remaining in the United States after commission of felony offense, 68 A.L.R. Fed. 2d 55.