Shepherd v. State

459 S.E.2d 608, 217 Ga. App. 893, 95 Fulton County D. Rep. 2517, 1995 Ga. App. LEXIS 630

• Court: Court of Appeals of Georgia
• Decided: July 14, 1995
• Docket: A95A0247
• Status: Published

Opinions

Pope, Presiding Judge.

Defendant was charged with the offense of child molestation, and following a bench trial, was convicted of sexual battery. Citing Teasley v. State, 207 Ga. App. 719 (429 SE2d 127) (1993) and Proper v. State 208 Ga. App. 471, n. 1 (431 SE2d 133) (1993), defendant argues the trial court was without authority to convict him of sexual battery because that offense is not a lesser included offense of child molestation, either as a matter of fact or of law. See also Perkins v. State, 212 Ga. App. 225, 227 (6) (441 SE2d 511) (1994); Duck v. State, 210 Ga. App. 205, 207 (4) (435 SE2d 725) (1993). However, we need not reach the issue of whether these cases require reversal of defendant’s conviction. The transcript shows that prior to the court pronouncing defendant guilty of sexual battery, the following colloquy between the court and counsel occurred: The trial judge: “Isn’t sexual battery a lesser included offense of child molestation?” State’s attorney: “No, Your Honor.” Defendant’s attorney: “Depends on the facts. It’s not as a matter of law. It can be.” Following several other comments by the State’s attorney, the trial court announced defendant guilty of the offense of sexual battery. No objection was heard from the defendant at that time.

In Griffith v. State, 188 Ga. App. 789 (374 SE2d 359) (1988), defendant was indicted for child molestation and convicted of simple battery. On appeal he contended that since simple battery is not a lesser included offense of child molestation, and he was not indicted for the offense of simple battery, his conviction for that offense was not authorized. However, this court rejected that contention, finding that any error had been induced by defendant’s conduct in requesting a charge on simple battery. Id. We find this analysis to be controlling in the case at bar. As noted above, defendant in this case indicated to the court that sexual battery could be a lesser included offense of child molestation and posed no objection when the court found defendant guilty of that offense. “Appellant cannot ignore at trial what he thinks is an injustice, take his chances on a favorable verdict, and complain later, nor can he complain on appeal of error that he induced. [Cits.]” Hall v. State, 189 Ga. App. 267, 268 (2) (375 SE2d 460) (1988); Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975); Helton v. State, 166 Ga. App. 662, 664 (2b) (305 SE2d 592) (1983); Vick v. State, 166 Ga. App. 572, 573 (2) (305 SE2d 17) (1983); Wright v. State, 162 Ga. App. 60 (290 SE2d 163) (1982). Defendant’s conviction for the offense of sexual battery is affirmed.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur specially.