Joseph Nelson v. State

• Court: Court of Appeals of Georgia
• Decided: March 12, 2013
• Docket: A12A1714
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

March 12, 2013

In the Court of Appeals of Georgia A12A1714. NELSON v. THE STATE.

ANDREWS, Presiding Judge.

Following a jury trial, Joseph Nelson appeals his conviction for child

molestation. He contends the trial court erred by instructing the jury, in violation of

his constitutional due process rights, that child molestation was a lesser included

offense of statutory rape. Because we find that child molestation is not a lesser

included offense of statutory rape under the required evidence test, we must reverse

Nelson’s conviction.

Viewed most favorably to the verdict, the evidence shows that Nelson was

charged with one count of statutory rape and one count of indecent exposure. At trial,

however, because of the lack of direct evidence of penetration, the State requested a

charge on child molestation as an included offense of statutory rape. Over Nelson’s objection, the trial court instructed the jury that child molestation was a lesser

included offense of statutory rape. Thereafter, the jury acquitted Nelson of statutory

rape and indecent exposure, and convicted him of child molestation. After the trial

court denied Nelson’s motion for a new trial, this appeal followed.

Citing McCrary v. State, 252 Ga. 521, 524 (314 SE2d 662) (1984), Nelson

contends the trial court erred by charging the jury that child molestation was a lesser

included offense of statutory rape because due process of law requires that the

indictment put the defendant on notice of the crimes with which he is charged and

against which he must defend. He asserts

[i]t is an elementary principle of criminal procedure that no person can be convicted of any offense not charged in the indictment. There may, of course, be a conviction of a lesser offense than that expressly named in the indictment, where the former is necessarily included in the latter, and also in some cases in which the lesser is not so included in the greater offense but where the language used in the indictment is sufficient to embrace the smaller offense.

Goldin v. State, 104 Ga. 549, 550 (30 SE 749) (1898). Nelson contends that neither

exception to the general rule applies in his case. His premise is that he was wrongly

convicted of a lesser included offense because his indictment for statutory rape did

not necessarily include within itself all of the essential elements of child molestation.

2 The indictment charged Nelson with “on or about the 12th day of December, 2008,

[Nelson] did, while being 18 years of age, engage in sexual intercourse with [TB], a

13 year old female child, and not being the spouse of the accused.” The facts alleged

in this indictment are not sufficient to establish the crime of child molestation because

they do not raise the intent to arouse or satisfy the sexual desires of either the child

or the accused which is an essential element of the crime of child molestation.

Further, statutory rape is not included within child molestation as a matter of

law because the crimes have different elements, e.g., child molestation does not

require that sexual intercourse occur, but statutory rape does. Compare OCGA § 16-

6-3 (a) (“[a] person commits the offense of statutory rape when he or she engages in

sexual intercourse with any person under the age of 16 years and not his or her

spouse, provided that no conviction shall be had for this offense on the unsupported

testimony of the victim) with OCGA § 16-6-4 (a) (“[a] person commits the offense

of child molestation when such person (1) 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”). See also Stulb v. State,

279 Ga. App. 547, 549 (631 SE2d 765) (2006) (Reversed on other grounds, Stuart v.

3 State, __ Ga. App. ___ (734 SE2d 814) (2012) (statutory rape is not a lesser included

offense of child molestation because the crimes have different elements).

A crime, however, may be included as 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 Drinkard v. Walker, 281

Ga. 211, 214 (636 SE2d 530) (2006), our Supreme Court disapproved the “actual

evidence” test and adopted the “required evidence” test for determining when one

offense is included in another under OCGA § 16-1-6 (1). Further, this test is

appropriate when considering whether jury charges are appropriate. Stuart v. State,

supra, __ Ga. App. at ___.

In applying the required evidence test

the important question is not the number of acts involved, or whether the crimes have overlapping elements, but whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged.

Drinkard v. Walker, 281 Ga. at 216. Under the test, we examine “whether each

offense requires proof of a fact which the other does not.” Lucky v. State, 286 Ga.

4 478, 481 (689 SE2d 825) (2010). Clearly, statutory rape and child molestation require

proof of facts which the other does not, and therefore child molestation is not a lesser

included offense of statutory rape. The State’s reliance on Burgess v. State, 189 Ga.

App. 790 (377 SE2d 543) (1989), is misplaced because it was decided under the

actual evidence test, which was rejected in Drinkard. Accordingly, as the trial court

erred by charging the jury that child molestation is a lesser included offense of

statutory rape, Nelson’s conviction must be reversed.

Judgment reversed. Doyle, P. J., and Boggs, J., concur.