Valdez-Hardin v. State

410 S.E.2d 354, 201 Ga. App. 126, 1991 Ga. App. LEXIS 1259

• Court: Court of Appeals of Georgia
• Decided: September 6, 1991
• Docket: A91A0782
• Status: Published

Opinion

Cooper, Judge.

Appellant was convicted by a jury of kidnapping and appeals the denial of her motion for new trial, raising as her sole enumeration of error the trial court’s failure to charge the jury on interference with custody as a lesser included offense of kidnapping.

Our review of the record indicates that appellant failed to submit a written request to charge on interference with custody. “ ‘A trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.’ [Cit.]” Robinson v. State, 194 Ga. App. 432, 433 (3) (390 SE2d 652) (1990). We reject appellant’s argument that she preserved her right to object to the trial court’s failure to charge on interference with custody by orally adopting the request to charge of her co-defendant, Teresa Ann Stroud, inasmuch as this court has consistently held that requests to charge must be in writing. Moreover, the transcript indicates that appellant failed to object to the trial court’s refusal to charge the jury as requested by the co-defendant. Thus, appellant waived her right to raise this objection on appeal. Young v. State, 191 Ga. App. 651 (4) (382 SE2d 642) (1989). Finally, we note that this court has recently determined that interference with custody is not a lesser included offense of OCGA § 16-5-40, the present kidnapping statute. See Stroud v. State, 200 Ga. App. 387, 389 (1) (408 SE2d 175) (1991). Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.