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Ga Court of Appeals: Child Molestation is not Lesser Offense of Statutory Rape

April 1, 2013

In Nelson v. State, the Georgia Court of Appeals ruled that the trial court erred when it instructed the jury it could find the defendant guilty of child molestation as a lesser included offense of statutory rape.

Joseph Nelson was charged with one count of statutory rape and one count of indecent exposure. The State accused him of engaging in sexual intercourse with a 13 year-old girl—Nelson was 18 years-old at the time. At trial, however, the State did not have sufficient evidence to prove penetration—an essential element of statutory rape. Therefore, the State requested that the jury be instructed that it could find Nelson guilty of child molestation as a lesser included offense of statutory rape. The trial court gave the requested instruction over Nelson’s objection. The jury proceeded to find Nelson not guilty of both of the indicted offenses, but found him guilty of child molestation.

On appeal, Nelson contended that the offense of child molestation contains elements that are not contained in the offense statutory rape. Under Georgia law, a person commits statutory rape when he “engages in sexual intercourse with any person under the age of 16” whereas someone commits the offense of child molestation when he “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 accused.” Despite differing elements, a crime may still be considered a lesser included offense when it requires proof of the same or fewer facts or a less culpable mental state than the charged crime. Using this “required evidence test”, the Court of Appeals found that child molestation is not a lesser included offense of statutory rape as the two crimes require the finding of different facts—a point made clear by simply reading the language of the two statutes. Thus, the Court of Appeals agreed with Nelson and reversed the child molestation conviction.

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