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Court of Appeals of Georgia.


No. A99A0605.

Decided: April 14, 1999

Levinson & Paul, Christopher G. Paul, Cartersville, for appellant. T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Defendant was tried before a jury and convicted of one count of aggravated child molestation and three counts of child molestation.   The evidence which authorized these convictions reveals that defendant engaged in sexual acts with a 14-year-old child.   Defendant filed this appeal after the denial of his motion for new trial.   Held:

 After the trial court announced the jury's verdict, the jury's foreman informed the trial court:  “Sir, we thought that in the beginning the victim was an active participant and it was consensual, and we wanted consideration for that during sentencing.”   Defendant contends this recommendation requires a new trial because the jury's finding with regard to the victim's consent is inconsistent with their finding that defendant is guilty of child molestation and aggravated child molestation.   We do not agree.

 While the element of force to overcome a victim's will must be proved when a defendant is charged with forcible rape of a child (State v. Collins, 270 Ga. 42, 508 S.E.2d 390), the presence of such force is irrelevant when a defendant is charged with child molestation or aggravated child molestation.   See Hines v. State, 173 Ga.App. 657, 658(1), 327 S.E.2d 786.   Because consent is not a defense to child molestation or aggravated child molestation (Coker v. State, 164 Ga.App. 493-494(1), 297 S.E.2d 68), it was unnecessary in the case sub judice for the jury to find that defendant forced the 14-year-old victim to submit to the sexual acts which constitute the offenses for which defendant was convicted.  “Child molestation is, by its very nature, a crime involving a forcible and violent act.  [Cits.]” Brown v. State, 268 Ga. 154, 155, 486 S.E.2d 178.   See Gibbins v. State, 229 Ga.App. 896(1), 495 S.E.2d 46.

The trial court did not err in denying defendant's motion for new trial.

Judgment affirmed.

McMURRAY, Presiding Judge.

ANDREWS and RUFFIN, JJ., concur.

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