STATE v. McDOWELL (2009)

Charles McDowell filed a general demurrer against an indictment charging him with three counts of child molestation. After a hearing, the trial court granted the demurrer. Because this ruling was error,¹ we reverse.

The relevant Code section, OCGA § 16-6-4, states in pertinent part: “A person commits the offense of child molestation when such person ․ [d]oes 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 person.”² Tracking the statutory language, each of the three counts against McDowell alleged, in pertinent part, that McDowell “did commit an immoral act in the presence of a child, to wit: [A.M.], a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of said accused by fondling his own penis in the presence of [A.S., A.L., and I.R.].”³ “Since the indictment set out all the essential elements of the crime and [McDowell] could not admit to those allegations without being guilty of a crime, the indictment was sufficient against a general demurrer.”⁴

McDowell failed to show otherwise. At the hearing, McDowell argued that the indictment implied that A.S., A.L., and I.R. were the alleged child molestation victims, yet they were all women.⁵ He also asserted that the child identified in the indictment, A.M., was too young to have had any understanding of his alleged acts. McDowell pointed out that the front page of the indictment listed the three women as witnesses and further claimed as significant that this list included neither the child nor the child's mother. In addition, McDowell asserted that the summoned police officer did not charge him at the scene with the crime of child molestation.

Nothing in McDowell's attacks, nor anything in Stroeining v. State,⁶ cited by McDowell, authorized the trial court to grant the general demurrer.⁷

Judgment reversed.

PHIPPS, Judge.

SMITH, P.J., and BERNES, J., concur.