Strickland v. State

• Decision Date: 04 December 1996
• Docket Number: No. A96A0990,A96A0990
• Citation: 223 Ga.App. 772,479 S.E.2d 125
• Parties: , 96 FCDR 4328 STRICKLAND v. The STATE.
• Court: Georgia Court of Appeals

Page 125

479 S.E.2d 125

223 Ga.App. 772, 96 FCDR 4328

STRICKLAND v. The STATE.

No. A96A0990.

Court of Appeals of Georgia.

Dec. 4, 1996.

Certiorari Denied March 7, 1997.

William W. Keith III, Chatsworth, Karen E. Luffman, Dalton, for appellant.

Roger G. Queen, District Attorney, for appellee.

RUFFIN, Judge.

A jury convicted John Strickland of cruelty to children and child molestation. He appeals the judgment of conviction. For reasons which follow, we affirm.

1. Strickland contends that the trial court erred in denying his written request for a jury charge on the offense of sexual battery. He claims that on the facts of his case, sexual battery was a lesser included offense of child molestation as a matter of fact and that he was, therefore, entitled to a charge on that offense. We address this contention first and at length because it raises a number of issues regarding lesser included offenses that have confused our courts for many years. We believe that the resolution of these issues is essential to the consistent administration of justice and to the preservation of fundamental rights.

Georgia law provides that a lesser offense can be included in a greater offense either as a matter of law or as a matter of fact. OCGA § 16-1-6; Messick v. State, 209 Ga.App. 459, 460 (1), 433 S.E.2d 595, 596 (1993). It is well established that, as a matter of law, the offense of sexual battery is not included in the offense of child molestation. See Gordon v. State, 210 Ga.App. 224, 227, 435 S.E.2d 742 (1993). ¹ However, two questions remain: whether sexual battery can ever be a lesser included offense of child molestation as a matter of fact and, if so, whether sexual battery is such a lesser included offense based on the facts of this case.

Unfortunately, our cases have been inconsistent regarding whether sexual battery can be a lesser included offense of child molestation as a matter of fact. While cases such as Duck v. State, 210 Ga.App. 205, 207 (4), 435 S.E.2d 725, 726 (1993), have suggested that sexual battery cannot be a lesser included offense of child molestation as a matter of fact, other cases such as Landrum v. State, 210 Ga.App. 275, 277 (6), 436 S.E.2d 40, 42 (1993), have implied that sexual battery may be a lesser included offense in some cases. See also Shepherd v. State, 217 Ga.App. 893, 459 S.E.2d 608 (1995) (Beasley, C.J., and Ruffin, J., concurring). In Shepherd, Chief Judge Beasley and the author of this opinion wrote separate concurring opinions arguing that sexual battery was a lesser included offense of child molestation in that case as a matter of fact. ² Furthermore, it is apparent that many trial courts continue to instruct juries that sexual battery is a lesser included offense of child molestation. See Flowers v. State, 220 Ga.App. 814, 817(6), 468 S.E.2d 199 (1996); Shepherd, supra; Paradise v. State, 212 Ga.App. 166, 169 (4), 441 S.E.2d 497, 499 (1994). Thus, it should be readily apparent that a clarification of this issue is long overdue.

(a) A crime is a lesser included offense of the crime charged as a matter of fact when "[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged...." OCGA § 16-1-6(1). In construing this provision, this Court has held that "even if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. [Cits.]" (Emphasis supplied.) Messick, supra at 460, 433 S.E.2d 595. Thus, whether a lesser offense is included in a greater offense as a matter of fact must be determined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial. See id.

A person commits the offense of child molestation, a felony, when he or she "does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." OCGA § 16-6-4(a). In comparison, a person commits the offense of sexual battery, a misdemeanor, when he or she "intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person." OCGA § 16-6-22.1(b). The elements of these two offenses clearly differ: child molestation requires specific intent, while sexual battery requires only general intent; child molestation includes non-physical conduct in the presence of a child under the age of 16 years, while sexual battery requires actual physical contact with a victim of any age.

As a result of the differences between these two offenses, it is possible to commit one offense without committing the other. For example, a person who engages in indecent acts in the presence of a child, but without actually touching the child, might be guilty of child molestation, whereas he would not be guilty of sexual battery. However, it is equally possible to engage in a single act which satisfies all of the elements of both offenses. For example, the act of fondling the genitalia of a 12-year-old child with only an inference of the intent to arouse sexual desires would satisfy all of the elements of both offenses. Yet, the substantive bar against double jeopardy would prohibit the State from convicting the defendant of both offenses on the basis of that singular act. See OCGA § 16-1-7(a)(1); State v. Estevez, 232 Ga. 316, 317 (1), 206 S.E.2d 475, 477 (1974). Thus, under OCGA § 16-1-6(1) and Messick, supra, 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.

The State, on the contrary, cites this Court's opinion in Duck, supra, for the proposition that sexual battery is not, and presumably never can be, a lesser included offense of child molestation as a matter of fact. ³ In Duck, this Court concluded that the indictment, which specified the victim's age, was "narrowly drawn to pertain only to a crime against a child[,]" and that sexual battery, therefore, could not be a lesser included offense of child molestation as a matter of fact. Id. at 208(4), 435 S.E.2d 725. Duck is one in a line of cases stemming from Teasley v. State, 207 Ga.App. 719(2), 429 S.E.2d 127 (1993).

Teasley held that the "indictment taken together with the evidence indicates that sexual battery was not a lesser included offense of child molestation in this case as a matter of fact" and that when the indictment and the evidence presented at trial does not warrant it, "it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense." (Citation and punctuation omitted.) Id. at 720, 429 S.E.2d at 128. Although broadly written, Teasley is a correct statement of the law when properly applied. See Messick, supra at 461, 433 S.E.2d 595; compare Bowers v. State, 177 Ga.App. 36, 338 S.E.2d 457 (1985). A lesser included offense as a matter of fact must be both adequately averred in the indictment and be supported by some evidence of record. State v. Alvarado, 260 Ga. 563, 564, 397 S.E.2d 550 (1990).

Nevertheless, while Teasley is a correct statement of the law when properly applied, its broad language has been read to hold that sexual battery can never be a lesser included offense of child molestation as a matter of fact, regardless of the language of the indictment and the proof at trial. See Proper v. State, 208 Ga.App. 471 n. 1, 431 S.E.2d 133 (1993); Duck, supra; and their progeny. Thus, to the extent that the following cases stand for the proposition that sexual battery cannot be a lesser included offense as a matter of fact, they are overruled: Division 6 of Flowers, Division 6 of Perkins, Division 4 of Duck, and Division 4 of Gordon. We also disapprove of any language in Division 2 of Teasley and footnote 1 of Proper that would support such an outcome.

Cases such as Landrum, that held a charge on sexual battery was not required based on an analysis of the evidence presented and not upon a rule that sexual battery could never be a lesser included offense of child molestation, are neither overruled nor disapproved. In the same manner, Division 2 of Chief Judge Beasley's special concurrence in Shepherd correctly analyzed this issue. A charge on sexual battery as a lesser included offense of child molestation is required when the indictment puts the defendant on notice that he could be convicted of the lesser included offense and the evidence presented at trial is sufficient to establish the lesser included offense consistent with these averments.

(b) While we have concluded that sexual battery can be a lesser included offense of child molestation as a matter of fact, we further conclude that sexual battery was not a lesser included offense in the present case given the evidence presented at trial. Consequently, we find that a charge on sexual battery was not required despite Strickland's written request. Compare Alvarado, supra. "[E]ven if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well." (Emphasis supplied.) Messick, supra at 460, 433 S.E.2d 595; see McCrary v. State, 252 Ga. 521, 523-524, 314 S.E.2d 662 (1984).

In determining whether a lesser included offense charge is necessary under a given indictment, this Court is...