(Ga. L. 1918, p. 259, §§ 1, 2; Code 1933, §§ 26-1303, 26-1304; Code 1933, § 26-2018, enacted by Ga. L. 1968, p. 715, § 1; Ga. L. 1995, p. 957, § 3; Ga. L. 1996, p. 871, § 1; Ga. L. 1996, p. 1115, § 3; Ga. L. 2006, p. 379, § 10/HB 1059.)
Cross references.- Actions for childhood sexual abuse, § 9-3-33.1.
Testimony as to child's description of sexual contact or physical abuse, § 24-8-820.
Visitation with minors by convicted sexual offenders while imprisoned, § 42-5-56.
Editor's notes.- Ga. L. 1995, p. 957, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Child Protection Act of 1995'. "
Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "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 that: "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 recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B. J. 8 (2001). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004). For article, "The Intimacy Discount: Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload," see 55 Emory L.J. 691 (2006). For article on the 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For article, "Inconsistencies in Georgia's Sex-Crime Statutes Teach Teens that Sexting is Worse than Sex," see 67 Mercer L. Rev. 405 (2016). For annual survey on criminal law, see 71 Mercer L. Rev. 69 (2019). For note, "Pedophilia, Exhibitionism, and Voyeurism: Legal Problems in the Deviant Society," see 4 Ga. L. Rev. 149 (1969). For note on the 2003 amendment to this Code section, see 20 Ga. St. U. L. Rev. 100 (2003). For note, "Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia," see 22 Ga. St. U. L. Rev. 519 (2005). For note, "Calling on the Legislature: Dixon v. State and Georgia's Statutory Scheme to Protect Minors from Sexual Exploitation," see 56 Mercer L. Rev. 777 (2005).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- Provision of O.C.G.A. § 16-6-3(b) for a harsher punishment for older persons found guilty of statutory rape is not unconstitutionally discriminatory. Phagan v. State, 268 Ga. 272, 486 S.E.2d 876 (1997), cert. denied, 522 U.S. 1128, 118 S. Ct. 1079, 140 L. Ed. 2d 136 (1998).
Statutory intent.
- Former Code 1933, § 26-1303 was intended to apply only to cases where the act of intercourse was accomplished with the actual consent or acquiescence of the female, and was to be treated as rape merely because the female was under the age of consent as therein specified. Strickland v. State, 207 Ga. 284, 61 S.E.2d 118 (1950).
Under O.C.G.A. § 16-6-3(b), the sentence for a person convicted of statutory rape who was 21 years of age or older was between 10 and 20 years, so because defendant was more than 21 years old when the offense was committed, the original sentence of five years probation was void, and the trial court properly granted the state's motion to vacate; once the illegal sentence was vacated, the trial court was not required to sentence defendant to 10 years probation. Thomas v. State, 272 Ga. App. 279, 612 S.E.2d 99 (2005).
Legislative objectives.
- Former Code 1933, § 26-2018 was substantially related to the legislative objectives of protecting young girls from the unique physical and psychological damage resulting from sexual intercourse with males. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979).
Statute raised age of consent from that of common law.
- Former Code 1933, § 26-1303 did not have the effect of creating a new and separate crime of rape, but sought only to raise the age of consent from that of the common law, which was under ten years of age to 14 years of age. Harrison v. State, 71 Ga. App. 369, 31 S.E.2d 119 (1944).
Indictment listing only forcible rape sufficient for statutory rape.
- Even though an indictment listed only the statute for forcible rape, because it alleged facts relevant to statutory rape, defendant was put on notice that defendant was being charged with the latter offense and was not prejudiced. Brown v. State, 228 Ga. App. 748, 492 S.E.2d 555 (1997).
Indictment failing to allege commission of crime.
- Indictment alleging that defendant attempted to commit the crime of statutory rape by taking the substantial step of discussing engaging in sexual intercourse via computer and driving to an arranged meeting place for the purpose of engaging in sexual intercourse was not fatally defective for failure to allege the commission of a crime. Dennard v. State, 243 Ga. App. 868, 534 S.E.2d 182 (2000).
Defendant cannot admit charges and be innocent as a matter of law.
- Defendant's general demurrer was properly denied, where the indictment alleged that defendant violated O.C.G.A. §§ 16-6-3 and16-6-4(c) over a period of time, some of which was after the victim turned 16, as defendant could not admit the charges and still be innocent as a matter of law. Grizzard v. State, 258 Ga. App. 124, 572 S.E.2d 760 (2002).
Only slight penetration necessary.
- Penetration of the female sexual organ by the sexual organ of the male, which is necessary to constitute rape, need be only slight. It is not necessary that the vagina shall be entered or the hymen ruptured, but an entering of the anterior of the organ, known as the vulva or labia, is sufficient. Lee v. State, 197 Ga. 123, 28 S.E.2d 465 (1943).
In rape there must be a penetration of the female organ of generation by the male organ of generation; that penetration may be slight or great, but there must be some penetration of the female organ by the male organ in order to consummate a rape. Addison v. State, 198 Ga. 249, 31 S.E.2d 393 (1944).
Proof that vulva was entered is sufficient.
- Proof that the vagina was entered is not essential to a conviction of rape, but proof that the vulva was entered is sufficient to show penetration, although the vagina be intact and not penetrated in the least. Addison v. State, 198 Ga. 249, 31 S.E.2d 393 (1944).
Proof of force is unnecessary.
- When one has carnal intercourse with a female under the age of 14, proof of force is unnecessary to show rape. Smith v. State, 192 Ga. 713, 16 S.E.2d 543 (1941).
Acts of force are irrelevant in a statutory rape case; it is the act of sexual intercourse and the age of the female that constitute the crime of statutory rape. Claitt v. State, 154 Ga. App. 727, 270 S.E.2d 34 (1980).
Lack of consent, not contact, is crucial issue.
- Offense under O.C.G.A. § 16-6-22.1(b), despite its 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 (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).
Questions of consent and chastity immaterial.
- When defendant was on trial for alleged offense of rape of a girl nine years of age, the court did not err in refusing to permit his attorney to interrogate the female as to a claimed particular instance of unchastity with another man, as the offense would have been rape, regardless of the girl's consent, and furthermore on a trial for rape, the female cannot be impeached by evidence of specific acts of unchastity. Latimer v. State, 188 Ga. 775, 4 S.E.2d 631 (1939).
When the illegal sexual or carnal intercourse is with a female child under the age of 14 years, the questions of consent and chastity are not material, and it would serve no useful purpose to allow a thorough and sifting examination as to her credibility in regard to such questions. Deen v. State, 216 Ga. 387, 116 S.E.2d 595 (1960).
Considerations of "consent" and "force" and "against her will" are irrelevant in statutory rape case, and the age of the victim is irrelevant in a forcible rape case except insofar as it may show her incapable of giving consent and thereby supply the "against her will" element. Hill v. State, 246 Ga. 402, 271 S.E.2d 802 (1980), cert. denied, 451 U.S. 923, 101 S. Ct. 2001, 68 L. Ed. 2d 313 (1981).
"Force and arms" was not an element of the offenses of statutory rape, O.C.G.A. § 16-6-3, child molestation, O.C.G.A. § 16-6-4, or furnishing alcohol to a minor, O.C.G.A. § 3-3-23, and since an indictment was couched in the words of the statutes and correctly informed defendant of offenses charged, the indictment's allegation of use of force was mere surplusage and was properly disregarded. Colon v. State, 275 Ga. App. 73, 619 S.E.2d 773 (2005).
Carnal knowledge of a child under ten, even though she consented to the act, is rape. Swink v. State, 225 Ga. 717, 171 S.E.2d 304 (1969).
Statutory scheme to protect children under 14 (now 16).
- Together, former Code 1933, §§ 26-2018 through 26-2020 (see now O.C.G.A. §§ 16-6-3 through16-6-5) provided a general statutory scheme giving protection to both male and female children under the age of 14 (now 16), regardless of the offender's gender, and thus were not invalid as depriving this defendant of equal protection of the law. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979).
Juvenile male defendant convicted of statutory rape was not deprived of equal protection, even though the statutory rape law applies only to a male engaging in sexual intercourse with an underage female, since, under the statute on child molestation, a female who engages in sexual intercourse with a male under the age of 14 is subject to the same penalties. In re B.L.S., 264 Ga. 643, 449 S.E.2d 823 (1994).
Right of privacy under Ga. Const. 1983, Art. I, Sec. I, Para. I prohibited the state from prosecuting defendant for fornication under O.C.G.A. § 16-6-18, since defendant and defendant's love interest, both age 16 and of legal age to consent to sex under O.C.G.A. § 16-6-3(a), engaged in private, unforced, non-commercial sex. In re J.M., 276 Ga. 88, 575 S.E.2d 441 (2003).
Reasonable belief that prosecutrix was of age of consent is no defense.
- Defendant's knowledge of age of female is not essential element of crime of statutory rape and therefore it is no defense that accused reasonably believed that prosecutrix was of age of consent. Tant v. State, 158 Ga. App. 624, 281 S.E.2d 357 (1981).
Effect of change in age of consent.
- When defendant had lawfully engaged in consensual sexual activity with a minor prior to the amendment raising the age of consent, the amendment did not interfere with defendant's constitutional right of privacy so as to exempt the defendant from its coverage of subsequent sexual activity with the minor. Phagan v. State, 268 Ga. 272, 486 S.E.2d 876 (1997), cert. denied, 522 U.S. 1128, 118 S. Ct. 1079, 140 L. Ed. 2d 136 (1998); McMillian v. State, 263 Ga. App. 782, 589 S.E.2d 335 (2003).
Knowledge of victim's age not an element.
- When a defendant was charged with statutory rape and child molestation in violation of O.C.G.A. §§ 16-6-3 and16-6-4, the trial court properly excluded any evidence showing that defendant believed that the victim was over the age of consent; knowledge of the victim's age was not an element of either statute. Haywood v. State, 283 Ga. App. 568, 642 S.E.2d 203 (2007).
Gender based classifications require less than strict scrutiny but more than minimum scrutiny and must serve important governmental objectives and must be substantially related to achievement of those objectives. Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979).
O.C.G.A. § 16-6-3 does not create a private cause of action in tort in favor of an alleged victim. McNamee v. A.J.W., 238 Ga. App. 534, 519 S.E.2d 298 (1999).
Retrial did not violate due process.
- Retrial on child molestation charge did not violate due process given the legislature's clear intention to prosecute sexual intercourse only as statutory rape. Maynard v. State, 290 Ga. App. 403, 659 S.E.2d 831 (2008).
Directed verdict of acquittal was moot when guilty of attempt.
- Because the defendant was not convicted on the statutory-rape charge but was, instead, found guilty of attempted statutory rape as a lesser-included offense, the issue of whether the trial court erred in denying the defendant's motion for a directed verdict of acquittal as to the statutory-rape charge was moot. Judice v. State, 308 Ga. App. 229, 707 S.E.2d 114 (2011).
Sex offender registration required for violation.
- Trial court properly held that the defendant, who was convicted of a statutory rape that occurred when the defendant was 18 and the victim was 13, had to register as a sex offender. Because the victim was under 14, the case did not fall within the exception of O.C.G.A. § 42-1-12(a)(9)(C) for misdemeanor statutory rape under O.C.G.A. § 16-6-3(c); moreover, the defendant was prosecuted in superior court, not juvenile court. Planas v. State, 296 Ga. App. 51, 673 S.E.2d 566 (2009).
Denial of first offender status was affirmed.
- Defendant's sentence for statutory rape was affirmed because the "any portion thereof" language in O.C.G.A. § 17-10-6.2(c)(1) indicated that the legislature's intent was not to allow the trial court to deviate from the entirety of § 17-10-6.2(b), but rather to grant the trial court discretion to deviate only from the mandatory minimum sentence guidelines. Tew v. State, 320 Ga. App. 127, 739 S.E.2d 423 (2013).
Misdemeanor rape sentence inappropriate.
- Since it was undisputed that the victim was 14 years old and was not the defendant's spouse at the time they engaged in sexual intercourse, the trial court was not required to sentence the defendant for misdemeanor statutory rape under O.C.G.A. § 16-6-3(c). Algren v. State, 330 Ga. App. 1, 764 S.E.2d 611 (2014).
20-year sentence for 15-year-old convicted of statutory rape upheld.
- Defendant's sentence of 20 years' imprisonment for statutory rape under O.C.G.A. § 16-6-3(b) did not meet even the threshold inference of gross disproportionality under Ga. Const. 1983, Art. I, Sec. I, Para. XVII, and U.S. Const., amend. VIII; the 13-year-old victim refused to have sex until the defendant brandished a knife and threatened to kill the victim's father. Conley v. Pate, 305 Ga. 333, 825 S.E.2d 135 (2019).
Failure to impose a "split sentence".
- Trial court committed error requiring that the defendant's sentence be vacated when the court sentenced the defendant to 20 years in prison but failed to include at least one year of probation as required by O.C.G.A. § 17-10-6.2. Hughes v. State, 341 Ga. App. 594, 802 S.E.2d 30 (2017).
Sentence for juveniles committing sexual battery.
- Because the evidence established that the juvenile's act of sexual battery was committed against the victim, who was under the age of 16, felony punishment under O.C.G.A. § 16-6-22.1(d) was required and the juvenile was not entitled to an adjudication for statutory rape as 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. In the Interest of P. T., 353 Ga. App. 511, 838 S.E.2d 596 (2020).
Failure to impose a "split sentence".
- Corrected sentence remained void because the trial court failed to impose a split sentence on the statutory rape and child molestation charges because those offenses were subject to the split sentence requirements, which required split sentences for each count. When the trial court resentenced the defendant in 2018, the court was still required to impose a split sentence on each count as required by the statute in effect at the time the defendant committed the crimes. Martinez-Chavez v. State, 352 Ga. App. 142, 834 S.E.2d 139 (2019).
Cited in Bearden v. State, 122 Ga. App. 25, 176 S.E.2d 243 (1970); Lee v. Hopper, 499 F.2d 456 (5th Cir. 1974); Presnell v. State, 241 Ga. 49, 243 S.E.2d 496 (1978); Beldonza v. State, 160 Ga. App. 647, 288 S.E.2d 37 (1981); Copeland v. State, 160 Ga. App. 786, 287 S.E.2d 120 (1982); Tucker v. State, 173 Ga. App. 742, 327 S.E.2d 852 (1985); McCrary v. State, 176 Ga. App. 683, 337 S.E.2d 442 (1985); Payne v. State, 258 Ga. 711, 373 S.E.2d 626 (1988); Daniel v. State, 194 Ga. App. 495, 391 S.E.2d 128 (1990); Legg v. State, 207 Ga. App. 399, 428 S.E.2d 87 (1993); State v. Collins, 270 Ga. 42, 508 S.E.2d 390 (1998); Trejo v. State, 245 Ga. App. 316, 537 S.E.2d 755 (2000); Melton v. State, 282 Ga. App. 685, 639 S.E.2d 411 (2006); Burke v. State, 316 Ga. App. 386, 729 S.E.2d 531 (2012); Ashmore v. State, 323 Ga. App. 329, 746 S.E.2d 927 (2013); Ponder v. State, 332 Ga. App. 576, 774 S.E.2d 152 (2015).
Evidence
Evidence of victim's past sexual encounters is irrelevant.
- In statutory rape proceedings, testimony as to victim's past sexual encounters, even though entered into evidence without objection, is irrelevant, i.e., having no tendency to prove or disprove any matter in issue in the case. Hill v. State, 159 Ga. App. 489, 283 S.E.2d 703 (1981).
Inquiry into the victim's past sexual experiences was properly refused, even where a physician testified that in examining the victim it was obvious she had been sexually active. Worth v. State, 183 Ga. App. 68, 358 S.E.2d 251 (1987).
Corroborating evidence.
- Law prescribes no standard for the strength of corroborating evidence, but it must be something more than a mere colorable support. Wright v. State, 184 Ga. 62, 190 S.E. 663 (1937).
Corroborative evidence, whether consisting of acts or admissions, must at least be of such a character and quality as tends to prove the guilt of the accused by connecting the accused with the crime. It need not, however, include testimony of an eyewitness of the act itself, or extend to everything said or done, and need not be positive or direct. Wright v. State, 184 Ga. 62, 190 S.E. 663 (1937).
Under former Code 1933, § 26-1304 (see now O.C.G.A. § 16-6-3), the evidence supporting that of the female or corroborative thereof must be testimony other than that of her own, as to the commission of the offense by the accused; and while it need not be sufficient of itself to establish guilt of the accused, it must tend to establish his guilt, although it is not necessary that the female be corroborated as to every essential element of the crime. In other words, there must be corroborating evidence fairly tending to prove that the crime was committed and that it was committed by the defendant. Wright v. State, 184 Ga. 62, 190 S.E. 663 (1937).
Only corroboration necessary in a case of rape where the woman is an imbecile or a child under 14 years of age incapable of consenting is proof of facts or circumstances tending to sustain the testimony of the woman as to acts of sexual intercourse with the defendant. Sewell v. State, 60 Ga. App. 606, 4 S.E.2d 475 (1939).
Quantum of corroboration needed in a rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration, but ultimately the question of corroboration is one for the jury. Davis v. State, 204 Ga. App. 657, 420 S.E.2d 349 (1992).
Testimony of the victim's mother as to statements made to her by the victim and her own knowledge of defendant's actions was sufficient corroborating evidence. Lee v. State, 232 Ga. App. 300, 501 S.E.2d 844 (1998).
Victim's testimony in a prosecution for statutory rape was sufficiently corroborated by her prior consistent statements, both verbal and written, and by a psychotherapist's testimony that she showed signs of sexual abuse syndrome. Patterson v. State, 233 Ga. App. 776, 505 S.E.2d 518 (1998).
Victim's prior consistent statements, as recounted by their recipients, can satisfy the O.C.G.A. § 16-6-3 corroboration requirement. Simpson v. State, 234 Ga. App. 729, 507 S.E.2d 860 (1998), aff'd, 271 Ga. 772, 523 S.E.2d 320 (1999).
Act of intercourse as testified to by the victim was corroborated by her outcry to her mother three weeks after the attack. Reece v. State, 241 Ga. App. 809, 527 S.E.2d 642 (2000).
Corroborated by defendant's confession, the victim's testimony that defendant had sexual intercourse with the victim when the victim was 14 sufficed to sustain the conviction. Bankston v. State, 249 Ga. App. 118, 548 S.E.2d 25 (2001).
Evidence was sufficient to corroborate the victim's testimony that the victim first had sexual intercourse with defendant at age 14 after the victim's mother testified that after a divorce from defendant and while the victim was living with the victim's parent, defendant began to come by her house when the mother was not there in order to see the victim, and that the mother found a letter from the victim to defendant in which the victim referred to the night they had sexual intercourse; thus, a reasonable trier of fact could rationally find from all the evidence proof beyond a reasonable doubt of defendant's guilt of statutory rape. Byrd v. State, 258 Ga. App. 572, 574 S.E.2d 655 (2002).
Defendant's conviction for statutory rape was affirmed on appeal because the victim's testimony was corroborated by the victim's parent, the police, and the medical and scientific findings. Weldon v. State, 270 Ga. App. 262, 606 S.E.2d 329 (2004).
There was sufficient corroboration of a victim's testimony for a jury to find the defendant guilty beyond a reasonable doubt of statutory rape, O.C.G.A. § 16-6-3(a), because one of the victim's sisters testified about the victim's statements to the sister and about the sister's observation of the victim and the defendant going into a bedroom together during the relevant time period; the victim's great aunt testified that when the victim told the aunt about the sexual abuse, the victim specifically said that the defendant was having sex with the victim. Williamson v. State, 315 Ga. App. 421, 727 S.E.2d 211 (2012).
Evidence was sufficient to support the defendant's convictions for rape, O.C.G.A. § 16-6-1(a)(1), statutory rape, O.C.G.A. § 16-6-3(a), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), aggravated sodomy, O.C.G.A. § 16-6-2(a)(2), child molestation, O.C.G.A. § 16-6-4(a)(1), and aggravated child molestation, O.C.G.A. § 16-6-4(c), because the evidence not only included the victims' testimony, which was both direct evidence of the victims' own molestation and similar transaction evidence of the other's abuse, but also included the testimony of outcry witnesses and recordings of the forensic interviews of both victims. Williamson v. State, 315 Ga. App. 421, 727 S.E.2d 211 (2012).
Evidence was sufficient to find the defendant guilty of statutory rape and child molestation under O.C.G.A. §§ 16-6-3(a) and16-6-4(a)(1) because the minor victim's testimony was corroborated by the medical evidence, the defendant's opportunity to commit the alleged crimes, the defendant's statements during a phone call, and the defendant's admission to one incident of sexual intercourse. Sanchez v. State, 316 Ga. App. 40, 728 S.E.2d 718 (2012).
Defendant's confession as corroboration.
- Defendant's confession to deputy sheriff, referring to the transaction charged in the indictment (rape upon his stepdaughter, a girl less than 13) would be sufficient corroboration, whether the verdict be for rape, the crime charged in the indictment, or a lesser offense included in the crime charged. Sewell v. State, 60 Ga. App. 606, 4 S.E.2d 475 (1939).
Corroborating identification evidence is not necessary in statutory rape prosecutions. Chambers v. State, 141 Ga. App. 438, 233 S.E.2d 818, rev'd on other grounds, 240 Ga. 76, 239 S.E.2d 324 (1977), later appeal, 146 Ga. App. 126, 245 S.E.2d 467 (1978); Hill v. State, 159 Ga. App. 489, 283 S.E.2d 703 (1981); Davis v. State, 204 Ga. App. 657, 420 S.E.2d 349 (1992).
Only fact of commission of crime of rape must be corroborated by other evidence and corroborating identification evidence is not necessary. Chambers v. State, 141 Ga. App. 438, 233 S.E.2d 818, rev'd on other grounds, 240 Ga. 76, 239 S.E.2d 324 (1977), later appeal, 146 Ga. App. 126, 245 S.E.2d 467 (1978).
Corroborative evidence tending to prove guilt of accused.
- Corroborative evidence, whether consisting of acts or admissions, must at least be of such a character and quality as tends to prove the guilt of the accused by connecting the accused with the crime. Chambers v. State, 141 Ga. App. 438, 233 S.E.2d 818, rev'd on other grounds, 240 Ga. 76, 239 S.E.2d 324 (1977), later appeal, 146 Ga. App. 126, 245 S.E.2d 467 (1978).
Evidence supporting that of the female or corroborative thereof must be testimony other than that of her own, as to the commission of the offense by the accused; and while it need not be sufficient of itself to establish the guilt of the accused, it must tend to establish his guilt although it is not necessary that the female be corroborated as to every essential element of the crime. Chambers v. State, 141 Ga. App. 438, 233 S.E.2d 818, rev'd on other grounds, 240 Ga. 76, 239 S.E.2d 324 (1977), later appeal, 146 Ga. App. 126, 245 S.E.2d 467 (1978).
Corroborating evidence in the form of: (1) testimony from a nurse practitioner about the victim's genital injuries: and (2) an outcry by the victim to a refugee health counselor that defendant had been sexually abusing the victim since the victim was seven years old was sufficient to support defendant's statutory rape conviction pursuant to O.C.G.A. § 16-6-3(a). Falak v. State, 261 Ga. App. 404, 583 S.E.2d 146 (2003).
Defendant's conviction for statutory rape was affirmed because the victim's prior consistent statements, as recounted by third parties to whom such statements were made, constituted sufficient substantive evidence of corroboration and the cousin and boyfriend provided circumstantial evidence as to the defendant's access to and contact with the victim. Brown v. State, 318 Ga. App. 334, 733 S.E.2d 863 (2012).
Quantum of corroboration needed in rape case is not that which is in itself sufficient to convict accused, but only that amount of independent evidence which tends to prove that incident occurred as alleged. Slight circumstances may be sufficient corroboration. Hill v. State, 159 Ga. App. 489, 283 S.E.2d 703 (1981); Dye v. State, 205 Ga. App. 781, 423 S.E.2d 713 (1992); Collins v. State, 229 Ga. App. 658, 495 S.E.2d 59, aff'd, 270 Ga. 42, 508 S.E.2d 390 (1998).
When the victim's testimony showed that an act of sexual intercourse occurred, it was not necessary that her testimony be corroborated in every particular. In re B.L.S., 264 Ga. 643, 449 S.E.2d 823 (1994).
Corroboration and sufficiency of evidence.
- Child-victim's prior consistent statements, as recounted by third parties to whom such statements were made, along with the child-victim's subsequent behavior, constituted sufficient substantive evidence of corroboration to convict for statutory rape. Turner v. State, 223 Ga. App. 448, 477 S.E.2d 847 (1996); Wilson v. State, 241 Ga. App. 426, 526 S.E.2d 381 (1999), cert. denied, 531 U.S. 907, 121 S. Ct. 252, 148 L. Ed. 2d 182 (2000).
Testimony of the victim's mother, sister, and aunt as to the victim's outcry, stating that the victim told them the defendant raped the victim, was sufficient corroboration of the victim's testimony. Salazar v. State, 245 Ga. App. 878, 539 S.E.2d 231 (2000).
Trial court did not err in denying a motion for a directed verdict on a charge of statutory rape, as the victim's recantation did not render the evidence against the defendant insufficient, because the victim's prior inconsistent statements concerning the sexual activity was substantive evidence of guilt; further, the prior inconsistent statements, corroborated by statements to others, as well as the defendant's own testimony that there was a sexual relationship, satisfied the sufficiency of the evidence standard of Jackson v. Virginia. Lewis v. State, 278 Ga. App. 160, 628 S.E.2d 239 (2006).
Sufficient evidence supported the defendant's convictions of aggravated child molestation under O.C.G.A. § 16-6-4(c), attempted aggravated sodomy under O.C.G.A. §§ 16-4-1 and16-6-2(a), and statutory rape under O.C.G.A. § 16-6-3(a); the victim testified that the defendant put the defendant's privates inside the victim's privates and attempted to put the defendant's privates in the victim's behind, and the nurse practitioner testified that the physical examination of the victim indicated injuries consistent with the victim's testimony. Anderson v. State, 282 Ga. App. 58, 637 S.E.2d 790 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Trial court upheld the defendant's statutory rape and child molestation convictions despite a challenge to the date-range period relating to the child molestation charge as sufficient evidence from the victim, which was supported by both the victim's mother and an examining nurse, supported the conviction; further, the defendant admitted to the victim's mother that sexual intercourse with the victim had occurred before. Northern v. State, 285 Ga. App. 303, 645 S.E.2d 701 (2007).
Evidence was sufficient to support the defendant's conviction for statutory rape because: (1) the underage victim met the defendant on the Internet and asked the defendant to come to Florida to pick the victim up, which the defendant did; (2) the defendant and the victim returned to the defendant's home in Georgia and engaged in sexual intercourse; (3) the victim got homesick and returned home; (4) the victim again asked the defendant to come get the victim, which the defendant did; (5) the couple returned to the defendant's home in Georgia and again had sexual intercourse; and (6) when the couple got into an argument that escalated into a struggle, the victim called the police, who responded to the call. Baker v. State, 316 Ga. App. 122, 728 S.E.2d 767 (2012).
Victim's testimony that the defendant performed oral sex on the victim when the victim was 13 years old, corroborated by the victim's prior consistent statements to the victim's father and to the responding officers and by the defendant's confession to the officers, was sufficient to support the defendant's conviction for statutory rape. Hill v. State, 331 Ga. App. 280, 769 S.E.2d 179 (2015).
Victim's testimony that the victim had sex, including oral sex, with the defendant, the victim's stepfather, the defendant, beginning when the victim was 12 years old was corroborated by, among other things, the defendant's admissions and, therefore, the evidence was sufficient to support the statutory rape, child molestation, aggravated child molestation, and incest convictions. Jackson v. State, 339 Ga. App. 313, 793 S.E.2d 201 (2016).
Victim's testimony along with corroborating evidence, including both the victim and the defendant's DNA on a sex toy that the victim alleged the defendant used when abusing the victim, supported the defendant's statutory-rape conviction. Garner v. State, 346 Ga. App. 351, 816 S.E.2d 368 (2018).
Polygraph results are adequate to provide corroboration of victim's testimony. State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977); Chambers v. State, 146 Ga. App. 126, 245 S.E.2d 467 (1978).
Victim's statements corroborated by testimony of nurse and confession of defendant.
- When the testimony of the victim was supported by that of the nurse who had examined her and testified to the victim's previous statements inculpatory of defendant and the victim's testimony was also supported by defendant's confession of other acts which would constitute child molestation of the victim, the victim's testimony was sufficiently corroborated, and the evidence did not demand a verdict of acquittal. Runion v. State, 180 Ga. App. 440, 349 S.E.2d 288 (1986).
Victim's statements as corroborating evidence.
- Child-victim's prior consistent statements, as recounted by third parties to whom such statements were made, can constitute "sufficient substantive evidence of corroboration" in a statutory rape case. Ogles v. State, 218 Ga. App. 92, 460 S.E.2d 866 (1995).
Victim's testimony regarding defendant's sexual conduct was corroborated by defendant's own testimony that he told the girl to hide when he heard his wife approaching and by his wife's testimony that he looked "scared" when she discovered the child with him. Timmons v. State, 182 Ga. App. 556, 356 S.E.2d 523 (1987).
Testimony of two witnesses about defendant's molestation of them when they were children, such incidents having occurred 11 and six years before trial, were properly admitted, where the prior incidents were extremely similar to the offenses for which defendant was tried and convicted. Childs v. State, 177 Ga. App. 257, 339 S.E.2d 311 (1985).
Admission of prior offenses.
- When defendant appealed defendant's conviction on multiple counts of violating O.C.G.A. §§ 16-6-3,16-6-4,16-6-5, and16-6-5.1, defendant unsuccessfully argued that the trial court erred in admitting two similar transactions. As to the first similar transaction, defendant induced any alleged error in that defendant's own counsel was the first to elicit the testimony of that transaction, and as to the second transaction, the trial court did not clearly err in finding that, because the transaction involved a sexual act by defendant in defendant's counseling office with a female whom defendant was counseling, the transaction was sufficiently similar to one of the crimes at issue which alleged a sexual act by defendant in defendant's counseling office with a female. Evans v. State, 300 Ga. App. 180, 684 S.E.2d 311 (2009), cert. denied, No. S10C0215, 2010 Ga. LEXIS 304 (Ga. 2010).
When the defendant was convicted of child molestation, aggravated child molestation, statutory rape, and one count of rape, the testimony of the defendant's sister regarding an incident that occurred when the sister was nine or 10 years old in which the defendant and a group of younger cousins played a game that involved sexual contact, including kissing on the mouth, and touching private parts, was properly admitted as the evidence tended to show the defendant's lustful disposition toward young girls and inappropriate or questionable behavior, even though the prior conduct was not illegal; and the incident, which occurred about 15 years prior to the current crimes, was not too remote in time to the charged crimes. Taylor v. State, 339 Ga. App. 321, 793 S.E.2d 198 (2016).
Admission of partial statement on age upheld.
- Trial court did not err by allowing the state to introduce the defendant's recorded interrogation into evidence with the defendant's statements that the victim told the defendant that the victim was almost 18 years old and that the defendant would not have had sex with the victim if the defendant had known that the victim was younger. The defendant's statement should not be redacted as the defendant's belief as to the victim's age was not relevant because it was not an essential element of either statutory rape or child molestation; mistake of fact regarding the victim's age was not a defense to either crime; and any statement the victim might have given regarding the victim's age was not admissible for impeachment purposes. West v. State, 344 Ga. App. 274, 808 S.E.2d 914 (2017), cert. denied, 2018 Ga. LEXIS 608 (Ga. 2018), cert. denied, 2019 U.S. LEXIS 783 (U.S. 2019).
Statement made based upon mistake as to rape victim's age admissible.
- When neither defendant nor the officer knew at the time of the pretrial interview that the female with whom defendant admitted having had sex was age 13 and so under the age of consent, defendant's confession was nonetheless voluntary and was not induced by trickery on the officer's part. Gaines v. State, 179 Ga. App. 623, 347 S.E.2d 673 (1986).
Statements of victim to mother and nurse held admissible.
- As to the victim's mother and the nurse who examined the victim, the admission of their testimony regarding statements the victim made to them, was admissible as substantive evidence of the matter asserted because the victim was under oath and subject to cross-examination about her testimony and about her out-of-court statements. Runion v. State, 180 Ga. App. 440, 349 S.E.2d 288 (1986).
Less than totally explicit testimony of victim admissible.
- When the victim testified that the defendant touched her "private parts" with his "private parts" and that "it hurt," and a nurse who examined and questioned the victim testified that the victim told her that the defendant had put his penis "in the front part of her bottom," although less than totally explicit, the testimony of the victim and of the nurse could be interpreted by a reasonable and rational trier of fact as statements that the defendant's male sex organ penetrated the victim's female sex organ. Runion v. State, 180 Ga. App. 440, 349 S.E.2d 288 (1986).
Confession and consent to DNA testing admissible.
- In a statutory rape case, as the record showed that police had not misrepresented the 12-year-old victim's status to the defendant or promised that the defendant would be charged with rape only if the investigation established that the defendant had committed forcible rape, the defendant's confession and DNA test results were not inadmissible as having been obtained through trickery and deceit. Henry v. State, 295 Ga. App. 758, 673 S.E.2d 120 (2009).
Pregnancy as evidence of crime.
- Victim's testimony that the defendant repeatedly sexually assaulted the victim by, inter alia, having sexual intercourse and oral sex with the victim throughout the applicable period and that the defendant impregnated the victim, causing the victim to undergo an abortion, was sufficient to support the defendant's convictions for child molestation, aggravated sexual battery, and statutory rape. Blackwell v. State, 346 Ga. App. 833, 815 S.E.2d 288 (2018), cert. denied, 2019 Ga. LEXIS 223 (Ga. 2019), cert. denied, 140 S. Ct. 283, 2019 U.S. LEXIS 4942, 205 L. Ed. 2d 145 (U.S. 2019), overruled on other grounds by Flowers v. State, 307 Ga. 618, 837 S.E.2d 824 (2020).
Sufficient evidence.
- Nine-year-old victim's testimony, corroborated by medical evidence and prior child molestation conviction, is sufficient to support a guilty verdict rendered by trier of fact. Whited v. State, 173 Ga. App. 435, 326 S.E.2d 803 (1985).
There was sufficient evidence to corroborate the victim's testimony, where it was shown that defendant had access to the victim and there was physical evidence that her hymen was ruptured and that her vagina was bleeding due to a recent injury. McClendon v. State, 187 Ga. App. 666, 371 S.E.2d 139 (1988).
Victim's prior consistent statements, as recounted by the victim's mother and a social services worker, were sufficient substantive evidence of corroboration to sustain defendant's conviction. Long v. State, 189 Ga. App. 131, 375 S.E.2d 274 (1988).
Victim's prior consistent statements to her cousin that defendant had gotten her pregnant, combined with other evidence showing that a pregnancy had in fact occurred and that defendant had the opportunity to cause it, constituted sufficient corroboration of the victim's testimony at trial to support a statutory rape conviction. Byars v. State, 198 Ga. App. 793, 403 S.E.2d 82 (1991).
Victim's prior consistent statements to witnesses, as well as a physician's testimony that the victim's hymen was not intact, sufficiently corroborated the victim's testimony and supported the defendant's statutory rape conviction. Simpson v. State, 234 Ga. App. 729, 507 S.E.2d 860 (1998), aff'd, 271 Ga. 772, 523 S.E.2d 320 (1999).
Evidence was sufficient to authorize a rational trier of fact to find defendant guilty of statutory rape where the victim was not defendant's wife, but rather, defendant's relationship to the victim was not more than that of a friend and occasional babysitter. Joiner v. State, 257 Ga. App. 375, 571 S.E.2d 430 (2002).
When defendant's stepchild and the stepchild's friend had not reported defendant's sexual acts involving them during an earlier welfare investigation and the stepchild only told of the sexual acts after the stepchild's parent refused to let the child move in with the other biological parent, such went to the victims' credibility, which was for the jury to determine, and the evidence was sufficient to support defendant's conviction for child molestation and statutory rape. Williams v. State, 263 Ga. App. 22, 587 S.E.2d 187 (2003).
When a 12-year-old child told the child's parent that defendant had just raped the child; hours after the alleged rape, a detective found defendant's checkbook in the abandoned house where the victim said the rape occurred, and a check had been written from the checkbook earlier that day; and a doctor who examined the victim within hours of the incident found abrasions and tenderness consistent with the child's description of what had occurred, the appellate court found the evidence sufficient to support defendant's convictions of rape, statutory rape, aggravated child molestation, and child molestation. Weathersby v. State, 263 Ga. App. 341, 587 S.E.2d 836 (2003).
Victim's testimony alone was sufficient to support defendant's convictions for incest and child molestation, and the evidence was sufficient to support defendant's statutory rape conviction as it was corroborated, since the victim testified that the defendant, the victim's stepparent, began to ask the victim to masturbate and to use sex toys, including vibrators, dildos, and other objects, and would use them on the defendant and on the victim when the victim was eight or nine years old; defendant began having sexual intercourse with the victim when the victim was about 12, even though the victim told the defendant that it was not right and that the victim did not like it; after one of the final acts of intercourse with defendant, the victim wiped the victim with a sock and kept the sock until the day the victim ran away to a friend's home and told the victim's friend about defendant's conduct, the semen stains on the sock were consistent with defendant's semen, and the state's expert's opinion was that epithelial cells present on the sock came from the victim's genital area; and when the victim was in the ninth grade, the victim told a friend about defendant's behavior but made the friend promise not to tell anyone. Eley v. State, 266 Ga. App. 45, 596 S.E.2d 660 (2004), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).
Defendant's convictions for child molestation, attempted statutory rape, and burglary were supported because: (1) defendant entered the 14-year-old victim's room through a window, uninvited, (2) the defendant told the victim to push the victim's bed against the door, (3) the defendant removed the victim's underwear and the defendant's own pants and laid on top of the victim, but the victim prevented the defendant from penetrating the victim, (4) defendant fondled the victim's breasts and touched the victim's nipples, and (5) on a prior occasion, defendant made the victim touch the defendant's genitals with the victim's hand. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).
Evidence supported a conviction for statutory rape where the victim was 14 years old at the time of the trial and the incident occurred approximately two years earlier; the victim's testimony was corroborated by the victim's sibling's testimony that the victim told the sibling that the defendant had "felt on her breasts and her butt and her vagina and that he put her on the bed and tried to put his penis inside her" and by a doctor's testimony that the doctor found no bruising, bleeding, secretions, or infections, but that the victim's hymen was not intact. Jackson v. State, 274 Ga. App. 26, 619 S.E.2d 294 (2005).
There was sufficient evidence to support the defendant's convictions for child molestation, aggravated child molestation, statutory rape, and incest, in violation of O.C.G.A. §§ 16-6-4,16-6-4(c),16-6-3, and16-6-22, respectively, because the defendant's step-child gave detailed testimony as to the continuing sexual conduct that the defendant inflicted on the step-child over a period of years, as the testimony from just that witness was sufficient to support the convictions, pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8); further, there was corroborative testimony from a friend of the step-child who witnessed at least one incident, and from an aunt who testified that the older step-child had sat in defendant's lap and that the defendant rubbed the step-child's legs, which was properly admitted for purposes of corroboration, bent of mind, lustful disposition toward children, and motive. Lewis v. State, 275 Ga. App. 41, 619 S.E.2d 699 (2005).
In addition to the substantive evidence of defendant's guilt, provided by the victim's prior inconsistent statements, evidence of women's sexy clothing found in defendant's hotel room, which the victim said that defendant had purchased, and information downloaded from an Internet site detailing the pimping lifestyle, was sufficient evidence to authorize a rational trier of fact to find defendant guilty of aggravated child molestation, statutory rape, and pimping. Lewis v. State, 278 Ga. App. 160, 628 S.E.2d 239 (2006).
Convictions for child molestation, aggravated child molestation, and statutory rape were upheld, as: (1) sufficient evidence was presented, via the three victims' testimony, to support the convictions; (2) testimony from one of the defendant's other children concerning similar transactions committed against the child was properly admitted in order to show the defendant's bent of mind and lustful disposition towards the defendant's own children; and (3) the defendant's trial counsel was not ineffective. McCoy v. State, 278 Ga. App. 492, 629 S.E.2d 493 (2006).
There was sufficient evidence to support a defendant's convictions for rape, incest, statutory rape, and child molestation against one of the defendant's children and a stepchild based on the defendant's repeated engagement in sexual intercourse with the children at various times while one was 12 to 16 years old and the other was 16 to 19 years old, and evidence of a letter threatening suicide on the defendant's part and apologizing for the actions against the children was also introduced against the defendant. However, the conviction on the charge of aggravated sexual battery against the stepchild was in error and required reversal since the state failed to introduce direct or circumstantial evidence sufficient to prove beyond a reasonable doubt that the defendant violated O.C.G.A. § 16-6-22.2 by penetrating that child's sexual organ with a replica penis. Connelly v. State, 295 Ga. App. 765, 673 S.E.2d 274 (2009), cert. denied, No. S09C0892, 2009 Ga. LEXIS 260 (Ga. 2009).
Prisoner's sufficiency of the evidence claim under 28 U.S.C. § 2254 was properly denied because although the jury rejected testimony of forcible rape by a 13-year-old victim, the jury was free to accept testimony stating that the victim had sexual intercourse and performed oral sex on the prisoner and proof of consent was not required under O.C.G.A. §§ 16-6-2,16-6-3, and16-6-4 for offenses of statutory rape and aggravated child molestation. Dorsey v. Burnette, F.3d (11th Cir. Mar. 18, 2009)(Unpublished).
Evidence was sufficient to convict the defendant of statutory rape because the victim testified that the defendant performed oral sex on the victim once and that they engaged in sexual intercourse twice, and the defendant admitted that the defendant had engaged in sexual intercourse with the victim. Lockhart v. State, 323 Ga. App. 887, 748 S.E.2d 694 (2013).
Victim's testimony that the victim had sexual intercourse with the defendant, testimony from the victim's father about the victim's disclosure to the father, and that the defendant confessed to police that the defendant had sexual intercourse with the victim was sufficient to support the defendant's conviction for statutory rape. Tucker v. State, 355 Ga. App. 796, 845 S.E.2d 759 (2020).
Evidence was sufficient to convict the defendant of statutory rape as the defendant engaged in sexual intercourse with the 12-year-old victim; and the evidence corroborated the victim's testimony regarding the rape, including evidence that the victim reported the rape to the victim's therapist and mother following the victim's suicide attempt, that the victim was withdrawn and disturbed when medical providers tried to examine the victim after the rape outcry, and that the victim accurately described the inside of the defendant's home. Nguyen v. State, 351 Ga. App. 509, 831 S.E.2d 213 (2019), cert. dismissed, No. S20C0488, 2020 Ga. LEXIS 402 (Ga. 2020).
Insufficient evidence of statutory rape.
- Fact that the victim occasionally visited the defendant's home, standing alone, did not directly connect the defendant with the statutory rape of the victim as alleged, and the state presented no other sufficient evidence of the defendant's guilt for the offense and, thus, that conviction had to be reversed. Atkins v. State, 304 Ga. 240, 818 S.E.2d 567 (2018).
Merger with Other Offenses
Merger into general rape count.
- When the evidence showed that an offense of statutory rape as alleged was included in the offense of rape as alleged, the statutory rape count merged into the rape count. Wofford v. State, 226 Ga. App. 487, 486 S.E.2d 697 (1997).
Statutory rape not lesser included offense of forcible rape.
- Since statutory rape requires proof of an element - age - that forcible rape does not, it cannot be a lesser included offense of forcible rape. Hill v. State, 246 Ga. 402, 271 S.E.2d 802 (1980), cert. denied, 451 U.S. 923, 101 S. Ct. 2001, 68 L. Ed. 2d 313 (1981).
Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 in failing to argue at trial and on appeal that the inmate's statutory rape and incest convictions should have merged into the inmate's rape conviction as a matter of fact since all of the crimes arose out of the same incident, as the crimes of statutory rape and incest were not established by proof of the same or less than all the facts required to establish the crime of rape; the inmate's convictions of statutory rape under O.C.G.A. § 16-6-3 and incest under O.C.G.A. § 16-6-22 were not included pursuant to O.C.G.A. § 16-1-6(1) in the rape conviction under O.C.G.A. § 16-6-1, as statutory rape, which required evidence as to the victim's age and that the victim was not the inmate's spouse, and incest, which required proof of the victim's relation to the inmate, had elements not required for rape. Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).
Although a habeas applicant was convicted of uncharged statutory rape based on an instruction that statutory rape was a lesser included offense of forcible rape, and it was later decided that statutory rape was never an offense included in forcible rape, the applicant failed to show a violation of due process because the elements of statutory rape were stated in the indictment as a whole, which also charged the applicant with child molestation and aggravated child molestation. Hill v. Williams, 296 Ga. 753, 770 S.E.2d 800 (2015).
On facts, incest is included offense of statutory rape. McCranie v. State, 157 Ga. App. 110, 276 S.E.2d 263 (1981), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).
Child molestation.
- Conviction for child molestation merges into the crime of statutory rape and when there is a conviction for both the conviction and sentence for the former crime must be reversed. Coker v. State, 164 Ga. App. 493, 297 S.E.2d 68 (1982).
Trial court did not err in instructing the jury that it could return a verdict on child molestation, where defendant had been indicted for statutory rape and the evidence showed that child molestation was a lesser included offense of statutory rape as a matter of fact. Burgess v. State, 189 Ga. App. 790, 377 S.E.2d 543 (1989), aff'd, 194 Ga. App. 179, 390 S.E.2d 92 (1990).
Child molestation and statutory rape offenses did not merge where they were separate legal offenses, and because the victim reported at least two separate acts of sexual intercourse with the victim's step-parent. McMillian v. State, 263 Ga. App. 782, 589 S.E.2d 335 (2003).
Trial court erred when it convicted defendant of child molestation because facts which were used to prove child molestation were the same facts which proved statutory rape, and the court should have merged the child molestation conviction with the statutory rape conviction. Dorsey v. State, 265 Ga. App. 404, 593 S.E.2d 945 (2004).
Defendant's conviction of aggravated child molestation was not based on the same conduct that would have supported a conviction for statutory rape, so the rule of lenity was inapplicable. Wilson v. State, 279 Ga. App. 459, 631 S.E.2d 391 (2006), cert. denied, No. S06C1689, 2006 Ga. LEXIS 1036 (Ga. 2006).
Trial court properly denied defendant's request to have defendant's convictions for statutory rape and aggravated child molestation merged for sentencing purposes as the crimes were distinct offenses with different elements; testimony of the victim also authorized the jury to find that the crimes occurred on different occasions over a period of months, and therefore the crimes did not merge as a matter of either law or fact. Williams v. State, 291 Ga. App. 173, 661 S.E.2d 601 (2008).
Trial court did not err in failing to merge the child molestation and statutory rape convictions because the child molestation conviction was based on the defendant touching the victim's back and vaginal area, while the statutory rape conviction was based on the defendant engaging in sexual intercourse with the victim. Wilson v. State, 354 Ga. App. 64, 840 S.E.2d 601 (2020).
Charges as to statutory rape and child molestation were not mutually exclusive.
- Trial court did not err in merging an attempted statutory rape charge into a child molestation charge, instead of merging the child molestation counts into the attempted statutory rape count; the evidence establishing that defendant fondled the victim's breasts was not used up in proving that the defendant removed their clothing and attempted penetration; accordingly, three child molestation charges were not subject to merger with the attempted statutory rape count. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).
Trial court did not err in merging an attempted statutory rape charge into a child molestation charge as the state was required to prove the commission of an immoral or indecent act (here removing the victim's and defendant's clothing), the victim's age was less than 16, and defendant's intent to arouse or satisfy the defendant's own or the child's sexual desires; thus, the state used up the evidence that defendant committed attempted statutory rape in establishing that the defendant committed child molestation. Leaptrot v. State, 272 Ga. App. 587, 612 S.E.2d 887 (2005).
Guilty verdict entered against a defendant on a charge of statutory rape, and a not guilty verdict against that same defendant on a charge of child molestation, stemming from the same act of intercourse with the victim, were not mutually exclusive or inconsistent, as the fact that the jury acquitted defendant of the child molestation charge did not make the evidence of statutory rape any less sufficient; further, even if the acquittal was inconsistent with the conviction, the inconsistency could not be used as an avenue to challenge the conviction, since the inconsistent-verdict rule was abolished in Georgia. Perez-Hurtado v. State, 275 Ga. App. 162, 620 S.E.2d 435 (2005).
Motion to dismiss statutory rape and child molestation charges on jeopardy grounds properly denied.
- Trial court properly denied the defendant's motion to dismiss charges alleging statutory rape and child molestation on jeopardy grounds as double jeopardy did not preclude the state from prosecuting defendant for both offenses, although the same conduct formed the basis for both charges. Moreover, because no corroboration was required for child molestation, the jury logically could have found, and in fact did find, the defendant guilty of molesting the victim by having sex with that victim, despite the jury's not guilty verdict on statutory rape. Maynard v. State, 290 Ga. App. 403, 659 S.E.2d 831 (2008).
Enticing a child for indecent purposes is not included in the crime of statutory rape. Coker v. State, 164 Ga. App. 493, 297 S.E.2d 68 (1982).
Consecutive sentences affirmed.
- Trial court did not err by sentencing the defendant to three consecutive 12-month sentences on probation with the first 12 months to be served on house arrest following the defendant's guilty plea to the offenses of statutory rape, fornication, and battery because the sentence was within the statutory limits and whether to impose consecutive or concurrent sentences for multiple offenses was within the trial court's discretion. Osborne v. State, 318 Ga. App. 339, 734 S.E.2d 59 (2012).
Merger properly denied.
- Trial court did not err in denying the defendant's request to merge the defendant's convictions for statutory rape and fornication for the purpose of sentencing because the defendant waived the issue of whether the offenses should have been merged when the defendant knowingly and voluntarily pled guilty to each of the crimes. Osborne v. State, 318 Ga. App. 339, 734 S.E.2d 59 (2012).
Trial court did not err in failing to merge the conviction for incest and statutory rape because the crime of committing incest by having sexual intercourse with a niece was not established by proof of the same or fewer than all the facts required to establish statutory rape, and the offenses did not merge as a matter of law. Jones v. State, 333 Ga. App. 796, 777 S.E.2d 480 (2015).
Jury Issues and Instructions
Quantum of corroboration is jury question.
- Quantum of corroboration required and its persuasive character is usually for jury. Miller v. State, 130 Ga. App. 275, 202 S.E.2d 682 (1973).
Ultimately, question of corroboration is one for jury. Hill v. State, 159 Ga. App. 489, 283 S.E.2d 703 (1981).
Lesser included offense of child molestation.
- While an indictment did not charge the defendant with statutory rape, O.C.G.A. § 16-6-3, the allegations of the indictment notified the defendant that statutory rape could have been considered a lesser included offense of the indicted crime of child molestation; since the defendant admitted that the defendant tried to place the defendant's penis in the victim's vagina, and since the victim testified that "it hurt," a jury instruction on statutory rape as a lesser included offense of child molestation was proper. Stulb v. State, 279 Ga. App. 547, 631 S.E.2d 765 (2006).
Erroneous charge.
- Charge which permitted the jury to find the defendant guilty of forcible rape pursuant to former Code 1933, § 26-2001 (see now O.C.G.A. § 16-6-1), under a definition of statutory rape pursuant to former Code 1933, § 26-2018 (see now O.C.G.A. § 16-6-3), and to impose a sentence of life imprisonment which could not be imposed for statutory rape was error. Robinson v. State, 232 Ga. 123, 205 S.E.2d 210 (1974).
Defendant's conviction for statutory rape was reversed because the trial court committed plain error by giving an erroneous jury charge, which affected the defendant's substantial right to a charge that provided the jury with the proper guideline for determining the defendant's guilt or innocence, and the court failed to remedy the error. Agan v. State, 319 Ga. App. 560, 737 S.E.2d 347 (2013).
Circumstantial evidence instruction not required.
- In a prosecution for statutory rape, pretermitting the issue of whether a notebook and love letters exchanged between the defendant and the victim constituted only circumstantial evidence because the defendant made an oral request that the jury be charged on the law under former O.C.G.A. § 24-4-6 (see now O.C.G.A. § 24-14-6), but did not make a written request for the charge, the trial court did not err in failing to charge the jury as the defendant requested. Attaway v. State, 284 Ga. App. 855, 644 S.E.2d 919 (2007).
No objection when defendant requested instruction.
- Trial court did not err by convicting defendant of statutory rape though the indictment cited only rape as defendant requested the statutory rape charge and, therefore, could not complain of a purported error that defendant created. Freeman v. State, 291 Ga. App. 651, 662 S.E.2d 750 (2008).
Instruction on attempted statutory rape proper.
- Trial court did not err in charging the jury on attempted statutory rape, O.C.G.A. §§ 16-4-1 and16-6-3(a), because the court's instruction to the jury was properly tailored to fit the allegations in the indictment and the evidence admitted at trial; the victim testified that the defendant positioned himself between her legs with his pants unbuttoned and that the two of them were about to engage in sexual intercourse before the victim's grandfather came into her bedroom, and based on that evidence, a rational trier of fact could conclude that the defendant attempted to have sexual intercourse with a person under the age of 16. Judice v. State, 308 Ga. App. 229, 707 S.E.2d 114 (2011).
No error in denying misdemeanor charge and in resulting felony sentence.
- Trial court did not err in denying the defendant's request to charge the jury on misdemeanor statutory rape and in imposing a felony sentence as: (1) a charge of misdemeanor statutory rape was not supported by the evidence, due to the difference in the defendant's and the victim's age at the time of the offense; (2) the defendant's requested charge set forth an incorrect principle of law within the context of the case; and (3) the sentence of five years probation under the First Offender Act, O.C.G.A. § 42-8-60 et seq., fell within the statutory range. Orr v. State, 283 Ga. App. 372, 641 S.E.2d 613 (2007).
No error in failing to instruct jury on purported lesser included offense of statutory rape.
- With regard to a defendant's convictions for felony murder, with the underlying felony being rape, among other crimes, and although the defendant filed a written request for a jury charge on involuntary manslaughter, the defendant was not entitled to a jury charge on statutory rape as the defendant failed to specify statutory rape as the underlying misdemeanor. Further, the defendant was not entitled to such a jury charge as statutory rape was not a lesser included offense to forcible rape. Mangrum v. State, 285 Ga. 676, 681 S.E.2d 130 (2009).
Jury determination of credibility.
- Testimony of the girl alleged to have been raped was not impossible or so inherently improbable as to be unworthy of belief as a matter of law, but her credibility on all questions was an issue to be determined by the jury in the light of her tender years and other circumstances. Sewell v. State, 60 Ga. App. 606, 4 S.E.2d 475 (1939).
First offender consideration appropriate.
- Based on the plain language of O.C.G.A. §§ 17-10-6.2(a)(4) and42-8-60(d)(2), a defendant who commits statutory rape is excluded from first offender consideration only if the defendant was 21 years of age or older. Thus, a defendant who was 18 at the time of the offense and 19 at the time of the conviction was eligible for first offender consideration. Planas v. State, 296 Ga. App. 51, 673 S.E.2d 566 (2009).
Instruction as to consent by person under 16.
- 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).
Sentencing.
- In defendant's trial on charges of child molestation and statutory rape, the trial court did not err by imposing separate sentences for each crime because the evidence showed that defendant committed both crimes on multiple occasions. Little v. State, 260 Ga. App. 87, 579 S.E.2d 84 (2003).
Because the indictment adequately set forth a charge of felony statutory rape, and because the evidence at trial showed the defendant to be over 21 years old and more than three years older than the victim, the trial court was not required to sentence the defendant for misdemeanor statutory rape, and in fact was precluded from doing so. Attaway v. State, 284 Ga. App. 855, 644 S.E.2d 919 (2007).
Trial court properly dismissed the defendant's motion to correct an allegedly void felony sentence as the sentence was authorized by the law in existence at the time of the defendant's statutory rape convictions, and the defendant failed to seek withdrawal of the guilty pleas which led to the same as a prerequisite to challenge the sentence imposed; thus, any further relief had to be sought through a petition for habeas corpus. McClendon v. State, 287 Ga. App. 515, 651 S.E.2d 820 (2007), cert. denied, No. S08C0222, 2008 Ga. LEXIS 174 (Ga. 2008).
There was no showing that the defendant's sentences for enticing a minor for indecent purposes, statutory rape, and contributing to the delinquency of a minor were vindictively enhanced in violation of Ga. Unif. Super. Ct. R. 33.6(B) after the defendant was allowed to revoke a guilty plea because, inter alia, the trial judge found that an enhanced sentence was warranted based on material differences between the facts presented regarding the nature of the crimes during the plea hearing and the trial; the concurrent sentences of 15 years to serve for enticing a minor for indecent purposes and statutory rape plus 12 concurrent months for contributing to the delinquency of a minor were within statutory limits and valid. There was no absolute constitutional bar to imposing a more severe sentence upon re-sentencing. Hawes v. State, 298 Ga. App. 461, 680 S.E.2d 513 (2009), cert. denied, No. S09C1769, 2010 Ga. LEXIS 15 (Ga. 2010).
Sentence within statutory limits.
- Trial court did not err in imposing or in refusing to reconsider the defendant's sentence of 20 years imprisonment for child molestation, with 15 to serve in confinement for statutory rape, because the defendant's sentence was within the statutory limits set by O.C.G.A. §§ 16-6-3(b) and16-6-4(b)(1); the defendant did not demonstrate that the defendant's sentence shocked the conscience. Gresham v. State, 303 Ga. App. 682, 695 S.E.2d 73 (2010).
First offender treatment.
- After a defendant's sentence for statutory rape under O.C.G.A. § 16-6-3 was rescinded in its entirety pursuant to the defendant's motion under O.C.G.A. § 42-8-34(g), the trial court lacked jurisdiction to resentence the defendant as a first offender because first offender treatment was only permitted before a defendant had been adjudicated guilty and sentenced under O.C.G.A. § 42-8-60(a). State v. Stulb, 296 Ga. App. 510, 675 S.E.2d 253 (2009).
RESEARCH REFERENCES
Am. Jur. 2d.
- 65 Am. Jur. 2d, Rape, § 11 et seq.
Mistake as to Age of Statutory Rape Victim, 6 POF2d 63.
C.J.S.- 75 C.J.S., Rape, § 26.
ALR.
- Civil liability for carnal knowledge with actual consent of girl under age of consent, 45 A.L.R. 780; 79 A.L.R. 1229.
Assault with intent to ravish or rape consenting female under age of consent, 81 A.L.R. 599.
Former acquittal or conviction under indictment or other information for rape or other sexual offense which does not allege that female was under age of consent as bar to subsequent prosecution under indictment or information which alleges that she was under age of consent; and vice versa, 119 A.L.R. 1205.
Admissibility and propriety, in rape prosecution, of evidence that accused is married, has children, and the like, 62 A.L.R.2d 1067.
Assault with intent to commit unnatural sex act upon minor as affected by latter's consent, 65 A.L.R.2d 748.
Applicability of criminal statutes relating to offenses against children of a specified age with respect to a child who has passed the anniversary date of such age, 73 A.L.R.2d 874.
Incest as included within charge of rape, 76 A.L.R.2d 484.
Statutory rape of female who is or has been married, 32 A.L.R.3d 1030.
Mistake or lack of information as to victim's chastity as defense to statutory rape, 44 A.L.R.3d 1434.
What constitutes penetration in prosecution for rape or statutory rape, 76 A.L.R.3d 163.
Multiple instances of forcible intercourse involving same defendant and same victim as constituting multiple crimes of rape, 81 A.L.R.3d 1228.
Constitutionality of rape laws limited to protection of females only, 99 A.L.R.3d 129.
Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 A.L.R.4th 1009.
Sexual child abuser's civil liability to child's parent, 54 A.L.R.4th 93.
Statute protecting minors in a specified age range from rape or other sexual activity as applicable to defendant minor within protected age group, 18 A.L.R.5th 856.
Mistake or lack of information as to victim's age as defense to statutory rape, 46 A.L.R.5th 499.
Admissibility of expert testimony as to proper techniques for interviewing children or evaluating techniques employed in particular case, 87 A.L.R.5th 693.
Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 103 A.L.R.6th 507.
Admissibility of suicide note in criminal proceedings, 13 A.L.R.7th 6.