# Strickland v. State

> Court of Appeals of Georgia · December 4, 1996 · 223 Ga. App. 772

URL: https://www.frixlaw.com/law-library/cases/9607522

## Case

- **Full name:** Strickland v. the State
- **Court:** Court of Appeals of Georgia
- **Decided:** December 4, 1996
- **Citations:** 223 Ga. App. 772; 96 Fulton County D. Rep. 4328; 479 S.E.2d 125; 1996 Ga. App. LEXIS 1294
- **Precedential status:** Published
- **Opinion:** Concurrence by Pope
- **Judges:** Ruffin, Beasley, McMurray, Birdsong, Blackburn, Pope, Andrews, Johnson, Smith, Banke
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Watson v. State, 297 Ga. 718 (2015).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9607522

## How later opinions describe it (automated extraction)

- noting that sexual battery requires only general intent

## Opinion text

Pope, Presiding Judge,
concurring specially.
I agree that the majority’s analysis in Division 1 (a) is a correct application of the general law of lesser included offenses to the specific situation involving child molestation and sexual battery. Arid I agree with the conclusion in Division 1 (b) that there was no evidence of sexual battery in this case, even though proof of intent will generally depend on inference in the absence of an actual statement, of *780 intent on the part of the defendant.
Nonetheless, I deem it necessary to address the real problem presented in situations like this one: Although the statutes defining child molestation and sexual battery leave open the possibility that sexual battery may be a lesser included offense of child molestation as a matter of fact, it offends our sensibilities that the sexual touching of a child could be a misdemeanor. Moreover, it is totally illogical that the sexual touching of a child may warrant a charge on a misdemeanor offense, while the commission of an indecent act in the presence of a child must be a felony. Clearly this is not what the legislature intended when it failed to specify that the victim of a sexual battery should not be a child, and our efforts to avoid this offensive result have produced the somewhat inconsistent body of case law described by the majority.
The optimum solution would be for the legislature to redefine sexual battery to eliminate the possibility of a child victim. But in the meantime, a charge on sexual battery as a lesser included offense will have to be given upon request in some child molestation cases.
I am authorized to state that Senior Appellate Judge Harold R. Banke joins in this special concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9607522. Public record. Not legal advice.