Proof of lack of consent not required for child under 16.

- In a prosecution for sexual battery under O.C.G.A. § 16-6-22.2(b), the state was not required to prove the victim's lack of consent to the incidents because the victim was 12 years old at the time, and the age of consent was 16. The defendant's knowledge of the victim's age was not a legal element of child molestation. Disabato v. State, 303 Ga. App. 68, 692 S.E.2d 701 (2010).

Finger as "foreign object."

- Legislature clearly intended to include penetration by a finger in the conduct proscribed by O.C.G.A. § 16-6-22.2; to limit the definition of "foreign object" to inanimate articles or instruments, and exclude therefrom a human appendage such as a finger, would apply the statute illogically. Burke v. State, 208 Ga. App. 446, 430 S.E.2d 816 (1993).

Term "foreign object" includes not only inanimate instruments, but also a person's body parts, such as a finger. Hardeman v. State, 247 Ga. App. 503, 544 S.E.2d 481 (2001).

Element of "penetration."

- Penetration, however slight, will suffice to satisfy the "penetration" element of O.C.G.A. § 16-6-22.2. Hendrix v. State, 230 Ga. App. 604, 497 S.E.2d 236 (1998), overruled on other grounds, Watson v. State, 297 Ga. 718, 777 S.E.2d 677 (2015).

Digital penetration sufficient.

- Evidence was sufficient to convict defendant of aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), where the victim's testimony, the victim's mother's testimony, and the doctor's testimony all established that defendant digitally penetrated the victim, causing physical injury. Gearin v. State, 255 Ga. App. 329, 565 S.E.2d 540 (2002).

Defendant's two convictions for aggravated sexual battery were upheld, as evidence supplied by the victim's testimony, that defendant penetrated the victim's genitals and the victim's anus with a foreign object, specifically, the defendant's finger, was sufficient to support the convictions. Cheek v. State, 265 Ga. App. 15, 593 S.E.2d 55 (2003).

An admission by the defendant, the testimony of a child, and the testimony of a witness as to the child's outcry established that the defendant's finger penetrated the child's sexual organ. As the defendant's finger was a "foreign object" for purposes of O.C.G.A. § 16-6-22.2, the evidence was sufficient to convict the defendant of aggravated sexual battery. Inman v. State, 295 Ga. App. 461, 671 S.E.2d 921 (2009).

Victim's testimony that the defendant penetrated her sexual organ with his finger was alone sufficient to prove the defendant guilty of child molestation (O.C.G.A. § 16-6-4(a)) and aggravated child molestation (O.C.G.A. § 16-6-22.2(b)), pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8). The testimony of the victim's cousin, two school friends, and the interviewing detective was admissible as substantive evidence under the former Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820). Vaughn v. State, 301 Ga. App. 391, 687 S.E.2d 651 (2009).

Insufficient evidence of venue.

- Absent sufficient proof establishing venue, the defendant's aggravated sexual battery and aggravated sodomy convictions were reversed; but, given that sufficient evidence otherwise existed to support the former charge, retrial on the charge would not violate the defendant's double jeopardy rights. Melton v. State, 282 Ga. App. 685, 639 S.E.2d 411 (2006).

Constitutional challenge held untimely.

- Trial court did not err in denying the defendant's motion for a directed verdict of acquittal as to the aggravated sexual battery charge, which specifically alleged that O.C.G.A. § 16-6-22.2 (b) violated the Equal Protection Clause of both the Georgia and U.S. Constitutions as the defendant did not move for the same until filing a second motion for a new trial, which was considered untimely. Phillips v. State, 284 Ga. App. 224, 644 S.E.2d 153 (2007).

Cited in Deal v. State, 241 Ga. App. 879, 528 S.E.2d 289 (2000); Hardeman v. State, 272 Ga. 361, 529 S.E.2d 368 (2000); Greulich v. State, 263 Ga. App. 552, 588 S.E.2d 450 (2003); Stroud v. State, 284 Ga. App. 604, 644 S.E.2d 467 (2007); Disharoon v. State, 288 Ga. App. 1, 652 S.E.2d 902 (2007); Finnan v. State, 291 Ga. App. 486, 662 S.E.2d 269 (2008); Dyer v. State, 295 Ga. App. 495, 672 S.E.2d 462 (2009); Greene v. State, 295 Ga. App. 803, 673 S.E.2d 292 (2009); Ashmore v. State, 323 Ga. App. 329, 746 S.E.2d 927 (2013); Nichols v. State, 325 Ga. App. 790, 755 S.E.2d 33 (2014); Calhoun v. State, 327 Ga. App. 683, 761 S.E.2d 91 (2014); Cisneros v. State, 334 Ga. App. 659, 780 S.E.2d 360 (2015), aff'd, 792 S.E.2d 326 (Ga. 2016).

Admissibility of evidence of similar offenses.

- In a prosecution for aggravated sexual battery and aggravated child molestation involving a 12-year-old child, evidence that the defendant had sexual intercourse with a 15-year-old child shortly before committing the charged crimes was properly admitted as the evidence was relevant to show bent of mind, course of conduct, and to corroborate the victim's testimony; the prejudicial effect of the evidence did not outweigh the probative value. Martin v. State, 294 Ga. App. 117, 668 S.E.2d 549 (2008).

Trial court did not err in admitting similar transaction evidence because certified copies of the defendant's prior conviction were sufficient to prove not only the similarity between the crimes for which the defendant was convicted, aggravated sexual battery, aggravated sodomy, child molestation, and enticing a child for indecent purposes, and the former crimes but also to establish that the defendant was, in fact, convicted of those offenses; the certified copies the state submitted included an indictment charging the defendant with continuous sexual abuse against a child to whom the defendant had recurring access and with whom the defendant engaged in three and more acts of lewd and lascivious conduct and with lewd and lascivious conduct upon the same child. Spradling v. State, 310 Ga. App. 337, 715 S.E.2d 672 (2011).

No evidence that defendant was conducting medical treatment or procedure.

- Trial court did not err in convicting defendant of aggravated sexual battery because the evidence authorized a jury to find that a defendant digitally penetrated the victim's vagina without her consent; the evidence did not demand a finding that defendant touched the victim's genitals as part of a medical treatment or procedure but authorized the jury to find that the defendant penetrated the victim's vagina for some other reason because defendant was not a licensed physician at the time of the act of aggravated sexual battery. Lee v. State, 300 Ga. App. 214, 684 S.E.2d 348 (2009).

Evidence sufficient for conviction of aggravated sexual battery. Ouzts v. State, 216 Ga. App. 194, 453 S.E.2d 801 (1995); Hardeman v. State, 247 Ga. App. 503, 544 S.E.2d 481 (2001).

Evidence was sufficient to support an aggravated sexual battery conviction when the defendant's eight year old stepchild testified that defendant "put his private in my private," that the defendant moved the defendant's body while inside the victim, that the defendant hurt the victim's "private," when the victim circled the appropriate places on anatomically correct drawings which were admitted into evidence, testified that the defendant put the defendant's "private" in the victim's mouth on more than one occasion, when eventually the victim told the victim's parent, the victim's babysitter, and the victim's doctor about these events, and when a physical examination revealed redness and swelling around the victim's genitals, which, the physician testified, could have been caused by trauma. Torres v. State, 262 Ga. App. 309, 585 S.E.2d 228 (2003).

Evidence was sufficient to uphold the defendant's conviction because, while there was evidence that the defendant did "pull" on the victim's private body part and cause the victim injury, those actions were not material to the crime; the state was not required to prove an unnecessary fact alleged in an indictment. Vanwinkle v. State, 263 Ga. App. 19, 587 S.E.2d 142 (2003).

Evidence was sufficient to find defendant guilty of aggravated sexual battery even when the evidence consisted primarily of the victim's testimony and the statements of the victim's sister; the testimony of a single witness was generally sufficient to establish a fact, and the jury clearly resolved the conflicts against the defendant. McGhee v. State, 263 Ga. App. 762, 589 S.E.2d 333 (2003).

Trial court correctly allowed three adults to testify about out-of-court statements which a four-year-old child made to them even though the child was unresponsive when the child was asked questions in court, and the appellate court found that the child's statements alleging that defendant placed the defendant's finger inside the victim's genitals, when considered with evidence that the child had gonorrhea, and transactional evidence that defendant molested the defendant's own child, was sufficient to sustain the defendant's convictions for child molestation and aggravated sexual battery. Bell v. State, 263 Ga. App. 894, 589 S.E.2d 653 (2003).

Evidence of the victim alone was sufficient to authorize a guilty verdict in a child molestation case; there was no requirement that the victim's testimony be corroborated, and defendant's convictions of child molestation, aggravated child molestation, rape, aggravated sexual battery, and cruelty to children were affirmed. McKinney v. State, 269 Ga. App. 12, 602 S.E.2d 904 (2004).

Evidence in an initial trial that defendant fondled the victim's breasts and placed the defendant's finger inside the victim's genitals, both without the victim's consent, was sufficient to sustain the defendant's convictions for sexual battery pursuant to O.C.G.A. § 16-6-22.1, and aggravated sexual battery pursuant to O.C.G.A. § 16-6-22.2(b); thus, double jeopardy did not prohibit a retrial granted on the ground that defendant received ineffective assistance of counsel. Weldon v. State, 270 Ga. App. 574, 607 S.E.2d 175 (2004).

Motion for a judgment of acquittal on charges of aggravated sexual battery, aggravated child molestation, and child molestation was properly denied as the defendant's testimony that the defendant blacked out during the incident did not demand a finding that the defendant lacked the requisite criminal intent; the victim testified that the defendant began rubbing the victim's legs, touched the victim's "private part" through the victim's clothing, pulled down the defendant's pants as well as the victim's pants, picked the victim up, and began rubbing the victim up and down against the defendant's "private part." Ward v. State, 274 Ga. App. 511, 618 S.E.2d 154 (2005).

As the victim testified that defendant entered the victim's bedroom and, without the victim's consent, inserted the defendant's finger and genitals into the victim's genitals, this testimony established forcible penetration; moreover, the examining sexual assault specialist concluded that the victim's wounds were consistent with the victim's story of sexual assault and indicated forced penetration by the finger and the genitals; the evidence was sufficient for the jury to find the defendant guilty of rape and aggravated sexual battery, pursuant to O.C.G.A. §§ 16-6-1(a)(1) and16-6-22.2(b). Duran v. State, 274 Ga. App. 876, 619 S.E.2d 388 (2005).

Evidence presented at defendant's trial was sufficient to sustain defendant's conviction for aggravated sexual battery, as the evidence showed that defendant pulled down the victim's underwear and stuck defendant's fingers in the victim's genitals; accordingly, the evidence showed that defendant penetrated the victim with a foreign object. Aaron v. State, 275 Ga. App. 269, 620 S.E.2d 499 (2005).

Evidence supported the defendant's conviction for aggravated child molestation and aggravated sexual battery because: (1) the 11-year-old victim testified that the defendant put the defendant's hand on the victim's private part, put the defendant's finger in the victim's private part, put the defendant's mouth on the victim's private part, and put the victim's mouth on the defendant's private part, and that when the victim put the victim's mouth on the defendant's private part, "he came, whatever you call it," (2) when the prosecutor asked the victim whether by that the victim meant that "stuff came out of his private part," the victim responded yes, and (3) in a videotaped pretrial interview, the victim explained that the victim was using the term "private part" to mean penis or vagina. Maddox v. State, 275 Ga. App. 869, 622 S.E.2d 80 (2005).

Aggravated sexual battery conviction was upheld on appeal as was the trial court's order denying defendant a directed verdict of acquittal because: (1) the victim's testimony sufficiently demonstrated that defendant put defendant's hand inside the victim's genitals; (2) the victim's testimony authorized the jury to conclude that the defendant penetrated the victim's sexual organ with a foreign object; (3) similar transaction evidence was properly admitted to prove the defendant's bent of mind and motive; (4) each similar transaction witness positively identified the defendant as the person who committed the independent act, and the proof of one of the incidents tended to prove the offense at trial, which also involved digital penetration in a hospital setting; and (5) three other similar transaction incidents, while not involving an actual touching, were properly admitted as evidence that defendant offered a female money or clothing in exchange for a sexual favor of some sort; finally, because the defendant failed to object that testimony from these witnesses was cumulative, the defendant waived this claim of error for purposes of appeal. Enurah v. State, 279 Ga. App. 883, 633 S.E.2d 52 (2006).

Convictions for kidnapping, aggravated sexual battery, sexual battery, and attempted rape were all upheld on appeal as a photo lineup was not impermissibly suggestive, similar transaction evidence was properly admitted, the defendant had notice of the same, and the jury was authorized to find that the victim was credible and to accept the victim's testimony; hence, a rational trier of fact could have found from the evidence presented that the defendant committed the charged crimes beyond a reasonable doubt. Watley v. State, 281 Ga. App. 244, 635 S.E.2d 857 (2006).

Despite the defendant's correct assertion that the trial court erred in charging the jury that one of the factors to be considered in assessing the reliability of identification testimony was the level of certainty shown by the witness about her identification, because there was evidence other than the victim's identification of the defendant which connected the defendant to the offenses of burglary, aggravated sodomy, and aggravated sexual battery, the error was harmless and the convictions for the those offenses were upheld. Bharadia v. State, 282 Ga. App. 556, 639 S.E.2d 545 (2006), cert. denied, No. S07C0522, 2007 Ga. LEXIS 222 (Ga. 2007).

Sufficient evidence supported the defendant's convictions of child molestation under O.C.G.A. § 16-6-4 and aggravated sexual battery under O.C.G.A. § 16-6-22.2; the testimony of the victim and the defendant conflicted, but the testimony of the victim, alone was sufficient to authorize the jury to find the defendant guilty. Goldstein v. State, 283 Ga. App. 1, 640 S.E.2d 599 (2006), cert. denied, No. S07C0623, 2007 Ga. LEXIS 338 (Ga. 2007).

Because sufficient evidence was supplied via the testimony from the child victim and the witnesses who corroborated that testimony to support the defendant's aggravated sexual battery and child molestation convictions, despite any alleged inconsistencies, the convictions were upheld as was the denial of the defendant's motions for an acquittal and a new trial. Lilly v. State, 285 Ga. App. 427, 646 S.E.2d 512 (2007).

Because the state presented sufficient evidence via the victim's testimony describing how the defendant placed a finger in the victim's vagina without the victim's consent, and the trial court did not abuse the court's discretion in admitting a similar transaction in which the defendant also victimized a female jogger, the defendant's aggravated sexual battery conviction was upheld on appeal. Coleman v. State, 284 Ga. App. 811, 644 S.E.2d 910 (2007).

Because sufficient direct evidence was presented via the victim's testimony that the defendant improperly touched and digitally penetrated the victim's vagina, convictions upon charges of aggravated sodomy, aggravated child molestation, and other crimes arising from that contact were upheld on appeal; further, any error related to the admission of the victim's videotaped statement was harmless as such statement would have been admissible as res gestae or to prove the defendant's lustful disposition. Morrow v. State, 284 Ga. App. 297, 643 S.E.2d 808 (2007).

Despite the defendant's claim that the victim's testimony was too uncertain to support a conviction for aggravated sexual battery, the conviction was upheld on appeal as: (1) it was not for the appeals court to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence; (2) in general, the testimony of the victim was sufficient to establish a fact; and (3) corroboration was not required, and if corroboration were, the bite mark on the defendant's shoulder, which was testified to by the victim, provided sufficient corroboration. Boyt v. State, 286 Ga. App. 460, 649 S.E.2d 589 (2007).

Victim's testimony and the fact that she had bruises consistent with the rape and battery she described were sufficient to support defendant's conviction for violating O.C.G.A. §§ 16-6-1(a)(1) and16-6-22.2(b); that no semen was found on the victim did not undercut the conviction, and any discrepancies between the victim's testimony and the testimony of two occupants of defendant's house, who stated that the victim was bruised before the assault, were properly resolved by the jury as the trier of fact. Duran v. Walker, F.3d (11th Cir. Mar. 29, 2007)(Unpublished).

Evidence was sufficient to support a defendant's convictions of child molestation, aggravated child molestation, and aggravated sexual battery after the five-year-old victim stated that the defendant had made her perform an oral act on his penis, that he had put his mouth on her vagina, and that he had stuck his finger in her vagina and anus; furthermore, the victim's seven-year-old sibling reported that the defendant had been lying on a bed in the same room as the victim, that the defendant had chased the sibling into the sibling's room and told the sibling to stay in bed until that night, and that the sibling saw "something bad" happen to the victim. Herring v. State, 288 Ga. App. 169, 653 S.E.2d 494 (2007), cert. denied, 2008 Ga. LEXIS 205 (Ga. 2008).

Evidence supported the defendant's convictions of rape under O.C.G.A. § 16-6-1(a)(2), aggravated sexual battery under O.C.G.A. § 16-6-22.2, and two counts of child molestation under O.C.G.A. § 16-6-4(a) with regard to his daughter, who was seven at the time. The victim testified that the defendant touched her vagina with his hand and insisted that she touch his penis with her hand; a detective testified that the victim told him that the defendant touched her on her vagina with his hands, fingers, and penis and that he asked her to touch his penis; another detective, who conducted a videotaped interview with the victim, testified that the victim told her that she had sex with the defendant on multiple occasions; in the interview, the victim stated that the defendant pulled her pants down and put his penis inside her vagina and that he put his hand inside her vagina; and the victim's mother and grandmother testified to similar statements by the victim. Osborne v. State, 291 Ga. App. 711, 662 S.E.2d 792 (2008), cert. denied, No. S08C1643, 2008 Ga. LEXIS 783 (Ga. 2008).

Defendant's own admission that the defendant digitally penetrated a 15-year-old victim's vagina while masturbating was sufficient to sustain the defendant's convictions for aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), and child molestation, O.C.G.A. § 16-6-4(a). Driggers v. State, 291 Ga. App. 841, 662 S.E.2d 872 (2008).

Testimony by a victim that the defendant and an accomplice, armed with handguns, forcibly entered the victim's apartment, raped and sodomized the victim, struck the victim with a gun, stole jewelry, bound the victim, and escaped in a car owned by the victim's prospective spouse, and evidence that 24 fingerprints lifted from the apartment and car matched the defendant's fingerprints was sufficient to convict the defendant of aggravated sexual battery. Crawford v. State, 292 Ga. App. 463, 664 S.E.2d 820 (2008).

Conviction of the defendant for aggravated sexual battery was supported by sufficient evidence since the victim of the defendant's inappropriate sexual conduct informed her mother and police about the defendant's conduct, and the defendant's answers to polygraph questions appeared deceptive. Colton v. State, 297 Ga. App. 795, 678 S.E.2d 521 (2009).

As a 14-year-old's testimony about the defendant's digitally penetrating the victim's genitals was sufficient, standing alone, to support the defendant's conviction of aggravated sexual battery, even assuming that testimony about the content of text messages between the defendant and the victim was improperly admitted hearsay, the defendant was not entitled to a new trial. Hollie v. State, 298 Ga. App. 1, 679 S.E.2d 47 (2009), aff'd, 287 Ga. 389, 696 S.E.2d 642 (2010).

Sufficient evidence supported the defendant's convictions of armed robbery, O.C.G.A. § 16-8-41(a), rape, O.C.G.A. § 16-6-1(a)(1), aggravated assault, O.C.G.A. § 16-5-21(a)(2), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), kidnapping, O.C.G.A. § 16-5-40(a), and aggravated sodomy, O.C.G.A. § 16-6-2(a)(2) involving four different victims on three separate dates; both the husband and the wife, the victims in the first criminal incident, identified the defendant in court as the perpetrator of the crimes. Two separate DNA analyses testified to by two forensic biologists showed that the defendant's sperm was present in the vaginas of the other two female victims. Robins v. State, 298 Ga. App. 70, 679 S.E.2d 92 (2009).

Trial court's denial of the defendant's motion for directed verdict was proper because there was some evidence establishing the defendant's commission of aggravated sexual battery; the testimony of a nurse practitioner that the victim had disclosed in her medical examination that the defendant had "put his fingers in her private part" during one of the sexual encounters established the offense, and although the victim had recanted her allegations during the initial investigations and testified at trial that she could not recall whether the defendant had penetrated her with his finger, such inconsistencies and conflicting evidence only created a question of credibility for the jury's resolution. Pearce v. State, 300 Ga. App. 777, 686 S.E.2d 392 (2009).

Circumstantial evidence that a defendant chastised the defendant's two-year-old child for soiling a diaper by poking the child's anus with a stick, resulting in perineal lacerations, was sufficient to support a conviction for aggravated sexual battery in violation of O.C.G.A. § 16-6-22.2(b). Viers v. State, 303 Ga. App. 387, 693 S.E.2d 526 (2010).

Evidence was sufficient to convict defendant of child molestation and aggravated child molestation under O.C.G.A. § 16-6-4 and of aggravated sexual battery under O.C.G.A. § 16-6-22.2(b) because the state provided testimony corroborating the victim's statements that when the defendant was supposed to babysit the victim after school, defendant regularly abused the victim at the victim's home, in the defendant's car, in a park, in a vacant house, and two motels by touching the victim, making the victim perform oral sex on the defendant, by sodomizing the victim, by making the victim wear thong underwear, and by taking cellular telephone photographs of the victim naked. Woods v. State, 304 Ga. App. 403, 696 S.E.2d 411 (2010).

Victim, who was age eighteen at the time of trial, testified that between the ages of seven and fourteen, the defendant molested her, putting his hand and his penis into her vagina and touching her all over her body. This evidence supported the defendant's convictions for child molestation, aggravated child molestation, and aggravated sexual battery. Wilson v. State, 304 Ga. App. 623, 697 S.E.2d 275 (2010).

Evidence that, after attempting to talk a 13-year-old babysitter into having sex with the defendant, the defendant threw her on the bed, straddled her, put the defendant's hand inside her underwear and inserted two fingers into her vagina was sufficient to convict the defendant of aggravated sexual battery in violation of O.C.G.A. § 16-2-22.1. A prior similar incident that occurred when the defendant was 12 years old was properly admitted to show the defendant's course of conduct and bent of mind. Lee v. State, 306 Ga. App. 144, 701 S.E.2d 582 (2010).

Evidence was sufficient to support the defendant's convictions for rape, O.C.G.A. § 16-6-1(a)(1), statutory rape, O.C.G.A. § 16-6-3(a), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), aggravated sodomy, O.C.G.A. § 16-6-2(a)(2), child molestation, O.C.G.A. § 16-6-4(a)(1), and aggravated child molestation, O.C.G.A. § 16-6-4(c) because the evidence not only included the victims' testimony, which was both direct evidence of their own molestation and similar transaction evidence of the other's abuse, but also included the testimony of outcry witnesses and recordings of the forensic interviews of both victims. Williamson v. State, 315 Ga. App. 421, 727 S.E.2d 211 (2012).

Physical evidence of the trauma to at least one victim, together with the consistency of the victims' statements to the outcry witnesses, law enforcement, and the forensic interviewer, the similar transaction testimony, and the evidence showing opportunity sufficed to establish each element of the charges of aggravated sexual battery and child molestation. Tudor v. State, 320 Ga. App. 487, 740 S.E.2d 231 (2013).

Defendant's aggravated sexual battery conviction was supported by the victim's testimony that the defendant "would finger her," and the testimony of a police investigator that the victim told the investigator that the defendant penetrated the victim's vaginal area with the defendant's fingers. Gordon v. State, 327 Ga. App. 774, 761 S.E.2d 169 (2014).

Sufficient evidence supported defendant's convictions for aggravated assault with the intent to rape, aggravated sexual battery, and burglary based on the testimony of the victim that at approximately 4:00 a.m. the victim was in bed asleep when a man got into the victim's bed and began choking the victim, that it was not consensual, and that the perpetrator indicated watching the victim for some time and inserted two fingers into the victim's vagina. Davis v. State, 326 Ga. App. 778, 757 S.E.2d 443 (2014).

Victim's testimony that the defendant was fingering the victim and tried to spread the victim's legs more so that the defendant could put the defendant's fingers in deeper was sufficient to support a finding of penetration for purposes of the aggravated sexual battery conviction. Madison v. State, 329 Ga. App. 856, 766 S.E.2d 206 (2014).

Victim's testimony that the defendant touched the inside of the victim's vagina with the defendant's finger two or three times was sufficient to support the defendant's conviction for aggravated sexual battery. Reinhard v. State, 331 Ga. App. 235, 770 S.E.2d 314 (2015).

Defendant's conviction for aggravated sexual battery against one victim was supported by the victim's testimony that the defendant stuck the defendant's fingers inside the victim's vagina and it felt uncomfortable, and the lack of consent was supported by evidence that the defendant threatened the victim by saying that the defendant's wife, the victim's day care provider, would be homeless if the victim disclosed the abuse. Moon v. State, 335 Ga. App. 642, 782 S.E.2d 699 (2016).

Evidence was sufficient to convict the defendant of three counts of child molestation, two counts of aggravated child molestation, and aggravated sexual battery because the abuse included the defendant fondling the victim's vagina and breasts, performing oral sex on the victim and forcing the victim to do the same to the defendant, and digitally penetrating the victim's vagina; after the defendant's wife and the victim's mother began traveling with the state fair, leaving the defendant and the victim living alone together for months at a time, the defendant began regularly having sexual intercourse with the victim; the victim finally disclosed the defendant's abuse to the victim's legal guardian; and the victim testified about the abuse. Brown v. State, 336 Ga. App. 428, 785 S.E.2d 84 (2016).

Evidence was legally sufficient to support the defendant's convictions for aggravated sexual battery and child molestation because the defendant touched the victim's vagina through and then underneath the victim's clothing at the family home; the defendant took the victim's hand and placed the victim's hand on the defendant's penis at the defendant's apartment; and the defendant put the defendant's hand on the victim's vagina in the defendant's taxi. Gonzales v. State, 345 Ga. App. 334, 812 S.E.2d 638 (2018).

Although the victim gave some conflicting testimony, the defendant's conviction for aggravated sexual battery was supported by evidence that the defendant's finger went into the victim's vagina and that the victim did not consent, telling a counselor that the victim did not want the defendant, the victim's step-grandfather, to touch the victim and wanted the defendant to stop. Williams v. State, Ga. App. , S.E.2d (June 7, 2018).

Although the victim gave some conflicting testimony, there was evidence that the defendant's finger went into the victim's vagina and that the victim did not consent, in that the victim told a counselor that the victim did not want the defendant to touch the victim and wanted the defendant to stop and, thus, the evidence was sufficient to support the defendant's conviction for aggravated sexual battery. Williams v. State, Ga. App. , 815 S.E.2d 590 (2018).

Evidence was sufficient to convict the defendant of aggravated sexual battery because the nine-year-old victim was asleep in a bed with the victim's mother and two siblings; the defendant, who was the mother's boyfriend, was asleep at the foot of the bed; after the mother got out of bed and left the room, the defendant moved so that the defendant was lying under the covers next to the victim; the defendant reached around the victim's body and inserted a finger in the victim's vagina; and, although the defendant asserted that the defendant mistook the victim for the mother, the state met the state's burden of showing intent as the defendant told the victim not to tell the mother about the defendant's actions before the victim pushed the defendant's hand away. Marroquin v. State, 346 Ga. App. 161, 816 S.E.2d 91 (2018).

Victim's testimony that the defendant repeatedly sexually assaulted the victim by, inter alia, having sexual intercourse and oral sex with the victim throughout the applicable period and that the defendant impregnated the victim, causing the victim to undergo an abortion, was sufficient to support the defendant's convictions for child molestation, aggravated sexual battery, and statutory rape. Blackwell v. State, Ga. App. , 815 S.E.2d 288 (2018).

Respiratory therapist guilty of sexual battery.

- Victim's testimony that the defendant, a respiratory therapist, put a finger inside the victim's privates supported the aggravated sexual battery conviction. Ellis v. State, 324 Ga. App. 497, 751 S.E.2d 129 (2013).

Force is not an element.

- Defendant's argument that there was insufficient evidence of force to convict defendant of aggravated sexual battery in violation of O.C.G.A. § 16-6-22.2(b) failed; force was not an element of aggravated sexual battery, and the daughter's testimony that defendant had placed a vibrator in the daughter's vagina and that it hurt badly was sufficient to sustain the conviction. Zepp v. State, 276 Ga. App. 466, 623 S.E.2d 569 (2005), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007).

Insufficient evidence for conviction.

- There was sufficient evidence to support a defendant's convictions for rape, incest, statutory rape, and child molestation against one of the defendant's children and a stepchild based on the defendant's repeated engagement in sexual intercourse with the children at various times while one was 12 to 16 years old and the other was 16 to 19 years old, and evidence of a letter threatening suicide on the defendant's part and apologizing for the actions against the children was also introduced against the defendant. However, the conviction on the charge of aggravated sexual battery against the stepchild was in error and required reversal since the state failed to introduce direct or circumstantial evidence sufficient to prove beyond a reasonable doubt that the defendant violated O.C.G.A. § 16-6-22.2 by penetrating that child's sexual organ with a replica penis. Connelly v. State, 295 Ga. App. 765, 673 S.E.2d 274 (2009), cert. denied, No. S09C0892, 2009 Ga. LEXIS 260 (Ga. 2009).

Resentencing did not violate double jeopardy.

- Because defendant's original sentence upon conviction for aggravated sexual battery was not in compliance with the minimum sentence requirements of O.C.G.A. § 17-10-6.1, resentencing did not violate double jeopardy. Bryant v. State, 229 Ga. App. 534, 494 S.E.2d 353 (1998).

Sexual battery and kidnapping.

- Jury's verdict finding the defendant not guilty of aggravated sexual battery was not necessarily logically inconsistent with the verdict finding the defendant guilty of kidnapping with bodily injury, where the evidence was that the victim suffered bodily injury during a kidnapping when one of the persons involved sexually assaulted the victim, but the victim could not identify which of the three persons it was. Kimble v. State, 236 Ga. App. 391, 512 S.E.2d 306 (1999).

Victim's testimony that the victim had sexual intercourse with defendant, that the defendant placed the defendant's finger in the victim's genitals, placed the defendant's hand on the victim's genitals, placed the defendant's mouth on the victim's breast, and placed the defendant's mouth on the victim's mouth, established the offenses of aggravated sexual battery pursuant to O.C.G.A. § 16-6-22.2, incest pursuant to O.C.G.A. § 16-6-22, and child molestation. Falak v. State, 261 Ga. App. 404, 583 S.E.2d 146 (2003).

Child molestation and aggravated sexual battery counts did not merge.

- Trial court properly refused to merge, for sentencing purposes, defendant's convictions for aggravated sexual battery and child molestation since the charged offense of aggravated sexual battery required proof of penetration, whereas the charged offense of child molestation did not. As a result, the separate acts were neither factually nor legally contained in the other respective count and, therefore, the offenses did not merge. Daniel v. State, 292 Ga. App. 560, 665 S.E.2d 696 (2008), cert. denied, No. S08C1931, 2008 Ga. LEXIS 891 (Ga. 2008).

Aggravated sexual battery and child molestation merged.

- Charges of aggravated sexual battery and child molestation, O.C.G.A. §§ 16-6-22.2(b) and16-6-4, respectively, were indistinguishable because all of the averments, including the date, the victim, and the description of the defendant's conduct constituting the offense, were identical. The charges should have merged for sentencing. Hudson v. State, 309 Ga. App. 580, 711 S.E.2d 95 (2011).

Questions requiring prejudgment of case.

- Trial court abused its discretion by prohibiting defense counsel asking prospective jurors whether they had strong feelings about child molestation, and if those feelings would impair their judgment or make it difficult for them to judge the case; but, this error was harmless given the overwhelming evidence of defendant's guilt regarding the numerous acts of sodomy that defendant engaged in with the defendant's child, the scientific evidence which linked his DNA to the semen found in the victim's mouth, and defendant's attempt to allude the authorities until the defendant was apprehended in Tennessee. Meeks v. State, 269 Ga. App. 836, 605 S.E.2d 428 (2004).

No reversible error in admitting character evidence via defendant's drug use.

- Defendant's convictions for various sexual offenses against a child were upheld on appeal because no reversible error occurred by the trial court allowing evidence of defendant's character as relevant via a police detective testifying that when the detective arrested the defendant, the detective pulled from the defendant's pocket a suspected methamphetamine glass pipe containing methamphetamine residue; the reviewing court found that the challenged evidence was cumulative since the victim, the victim's mother, and another witness all testified to the defendant's drug usage. Quarles v. State, 285 Ga. App. 758, 647 S.E.2d 415 (2007).

Expert testimony.

- With regard to defendant's conviction for child molestation and aggravated sexual battery, the trial court did not err by denying the motion for mistrial or motion for new trial based on the testimony of a forensic interviewer following the child victim's outcry in court about testifying because the forensic interviewer provided only general testimony concerning child abuse accommodation syndrome and the behaviors abused children often exhibit as a result of having been abused and did not testify that in her opinion the victim had been abused or that her inability to take the stand to testify against defendant was a result of having been abused by defendant. Canty v. State, 318 Ga. App. 13, 733 S.E.2d 64 (2012).

Ineffective assistance of counsel claim did not warrant new trial.

- On appeal from convictions on two counts of child molestation and one count of aggravated sexual battery, the trial court properly found that the defendant was not entitled to a new trial based on allegations of the ineffective assistance of defense counsel because: (1) the manner in which counsel handled alleged exculpatory evidence pertaining to a similar transaction witness and the cross-examination of that witness was part of counsel's reasonable trial strategy; (2) the defendant's reciprocal discovery or due process rights were not violated; and (3) the existence of the information sought was known to the defendant, which could have been obtained with due diligence. Ellis v. State, 289 Ga. App. 452, 657 S.E.2d 562 (2008).

With regard to a defendant's conviction for aggravated sexual battery, the trial court did not err by denying the defendant's motion for a new trial, which was based on the defendant's allegations that the defendant received ineffective assistance of counsel, because the defendant failed to establish any deficient performance on the part of trial counsel and, even if any action was arguably deficient, the defendant failed to establish any prejudice to the defense. Specifically, the state's opening statement that the victims were coming to court seeking justice, safety, and protection were not improper comments on the defendant's punishment or future dangerousness; thus, it was not ineffectiveness for trial counsel to have failed to object to the comments, and with regard to objecting to certain testimony from a father of one of the victims, the court found that trial counsel did not err by failing to renew a mistrial motion and relying upon the trial court giving a curative instruction to disregard the improper comments instead. Murray v. State, 297 Ga. App. 571, 677 S.E.2d 745 (2009).

Counsel not ineffective for failure to call wife as witness.

- On appeal from convictions on one count of aggravated sexual battery and two counts of sexual assault, the trial court did not err in denying the defendant's motion for a new trial as the defendant failed to show that any prejudice resulted from counsel's failure to call the defendant's wife to testify for the defense, and the appeals court refused to speculate that the testimony would have led to an acquittal. Lee v. State, 286 Ga. App. 368, 650 S.E.2d 320 (2007).

Directed verdict of acquittal unwarranted as: (1) the credibility of the child victim and any conflicts in the trial testimony were matters solely within the province of the jury to decide; (2) physical findings were not required to corroborate the charges of child molestation, aggravated sexual battery, and aggravated child molestation; and (3) the victim's testimony alone was sufficient to authorize the jury to find the defendant guilty of the crimes charged under the standard of Jackson v. Virginia, 443 U.S. 307 (1979). Hutchinson v. State, 287 Ga. App. 415, 651 S.E.2d 523 (2007).

Severance of offenses.

- Trial court did not abuse the court's discretion in denying the defendant's motion to sever the offenses of child molestation, O.C.G.A. § 16-6-4(a)(1), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), tattooing the body of a minor, O.C.G.A. § 16-5-71(a), and the defendant's motion for new trial on that basis because all of the sex offenses were similar and showed the defendant's common motive, plan, scheme, or bent of mind to satisfy the defendant's sexual desires, and the circumstances surrounding the tattooing offenses would have been admissible at the trial of the sex offenses to show the defendant's lustful disposition and bent of mind; the case was not so complex as to impair the jury's ability to distinguish the evidence and apply the law intelligently as to each offense. Boatright v. State, 308 Ga. App. 266, 707 S.E.2d 158 (2011).

Application of rule of lenity.

- Since the appellate court could not determine from the general verdict form the date of the act upon which the jury prounounced guilt, the rule of lenity applied and the defendant could not be given the higher sentence applciable to only a portion of the time alleged in the indictment. Davis v. State, 323 Ga. App. 266, 746 S.E.2d 890 (2013).

Jury charge proper.

- While the trial court did not specify that a hand constituted a foreign object, the jury charge as a whole and as adjusted to the evidence would not have misled a jury of ordinary understanding and thus could not have caused defendant to be convicted of aggravated sexual battery in a manner not alleged by the indictment. Vanwinkle v. State, 263 Ga. App. 19, 587 S.E.2d 142 (2003).

When the trial court's jury instructions were viewed as a whole and as adjusted to the evidence in the trial, there was no error in the instructions on a charge of aggravated sexual battery, in violation of O.C.G.A. § 16-6-22.2(b), as the instructions would not have misled a jury of ordinary intelligence and could not have caused the defendant to have been convicted of the crime in a manner not alleged in the indictment; the trial court had omitted the words "or anus" from the statutory definition of the offense. Lester v. State, 278 Ga. App. 247, 628 S.E.2d 674 (2006).

Instruction that the defendant could be convicted of aggravated sexual battery by penetrating the sexual organ or the anus, when the indictment alleged penetration of the vagina, was not erroneous because the jury was instructed the jury could only convict the defendant for offenses charged in the indictment. Brown v. State, 315 Ga. App. 115, 726 S.E.2d 612 (2012), cert. denied, No. S12C1239, 2012 Ga. LEXIS 983 (Ga. 2012).

There was no plain error in the trial court's charge to the jury because the trial court gave an appropriate limiting instruction prior to the admission of the similar transaction evidence and because the purposes cited in the trial court's final charge were permissible and relevant to the state's case. Griffin v. State, 327 Ga. App. 751, 761 S.E.2d 146 (2014).

Trial court did not err in refusing to give the jury charges requested by the defendant because, in the trial court's instructions to the jury, the trial court read the statutory definition of aggravated sexual battery, which included lack of consent as an element; the trial court instructed the jury that the state was required to prove, beyond a reasonable doubt, each and every element of the charge in the indictment, which would include lack of consent; and the trial court instructed the jury twice that, should the jury find that the state failed to meet the jury's burden, the jurors were required to acquit the defendant. Sneed v. State, 337 Ga. App. 782, 788 S.E.2d 892 (2016).

Good character charge erroneous.

- In a prosecution for aggravated sexual battery, a good character charge was erroneous as: 1) the charge failed to inform the jury that the defendant's good character was a substantive fact, and that evidence of good character had to be considered in connection with all other evidence; and 2) the charge failed to instruct the jury that good character in and of itself could be sufficient to create a reasonable doubt as to guilt. Hobbs v. State, 299 Ga. App. 521, 682 S.E.2d 697 (2009).

Charge on lesser offense not warranted.

- Although some evidence showed that the defendant, convicted of aggravated sexual battery under O.C.G.A. § 16-6-22.2(b), touched the victim's vagina without penetration, the defendant was not entitled to a jury instruction on the lesser included offense of sexual battery under O.C.G.A. § 16-6-22.1 because the defendant's defense was that the victim fabricated her claims. Smith v. State, 310 Ga. App. 392, 713 S.E.2d 452 (2011).

Charge on accident as defense not warranted.

- Trial court did not err in failing to charge the jury on accident as a defense to aggravated sexual battery as the defendant did not admit to the act of penetration and, thus, was not entitled to such an instruction. Davis v. State, 323 Ga. App. 266, 746 S.E.2d 890 (2013).

Jury charge erroneous for failing to limit charge to manner of touching alleged in indictment.

- Defendant's conviction for sexual battery was reversed because both the trial court's charge and recharge on sexual battery were erroneous given the court's failure to limit the charge to the manner of touching alleged in the indictment. Henderson v. State, 333 Ga. App. 759, 777 S.E.2d 48 (2015).

Failure to charge consent required.

- Jury was erroneously instructed on the issue of consent, the court failing to instruct the jury that actual proof of the victim's lack of consent was required regardless of the victim's age, effectively relieving the state of the state's burden to prove an essential element of the crime. Williams v. State, Ga. App. , 815 S.E.2d 590 (2018).

Charge required jury to find "without consent".

- In the defendant's trial for aggravated sexual battery, O.C.G.A. § 16-6-22.2, the jury charge did not suggest that the element of "without consent" was established solely by the victim's age; thus, the aggravated sexual battery charge was not a strict liability crime. The defendant completed the crime of aggravated sexual battery on the bed prior to molesting and causing the victim cruel or excessive physical or mental pain when the defendant followed the victim into the bathroom; the crimes did not merge. Womac v. State, 302 Ga. 681, 808 S.E.2d 709 (2017).

Sentence excessive.

- Sentences of 25 years each imposed by the trial court on the crimes of incest under former O.C.G.A. § 16-6-22(b) and aggravated sexual battery under former O.C.G.A. § 16-6-22.2(c) were void; the maximum sentence for each crime was 20 years at the time the crimes were committed. Howard v. State, 281 Ga. App. 797, 637 S.E.2d 448 (2006).

Sentence not excessive.

- Claim by the defendant that a sentence pursuant to O.C.G.A. §§ 16-6-22.2(b) and17-10-6.1(b)(2) constituted cruel and unusual punishment because the sentence was grossly out of proportion to the severity of the crime, and that the sentence was overly severe under the circumstances was within the exclusive jurisdiction of the Georgia Supreme Court when the claim challenged the constitutionality of the statutes themselves as the sentence was legally authorized and within statutory limits; thus, the sentence was upheld. Colton v. State, 297 Ga. App. 795, 678 S.E.2d 521 (2009).

Registration properly required.

- Trial court properly convicted the defendant of failing to register as a sexual offender under O.C.G.A. § 42-1-12(e)(4) because the statute was not unconstitutionally vague absent the definition of the term sexually violent offense as it included offenses in violation of O.C.G.A. § 16-6-22.2 and the defendant admitted the defendant knew the defendant was required to register. Youmans v. State, 291 Ga. 754, 732 S.E.2d 441 (2012).

Merger.

- Defendant's child molestation conviction under O.C.G.A. § 16-6-4(a) did not merge under O.C.G.A. §§ 16-1-6(1) and16-1-7(a) into the defendant's aggravated sexual battery conviction under O.C.G.A. § 16-6-22.2 as the child molestation charge required proof that the defendant committed an immoral and indecent act with the intent to arouse and satisfy the defendant's sexual desires, whereas the aggravated sexual battery charge did not, and the aggravated sexual battery charge required proof of penetration, whereas the child molestation charge did not. Gaston v. State, 317 Ga. App. 645, 731 S.E.2d 79 (2012).

ALR.

- Admissibility of suicide note in criminal proceedings, 13 A.L.R.7th 6.