Accordingly, a jury charge on sexual battery was not warranted. See id.; see also Hilliard v. State, 298 Ga. App. 473, 475 (2) ( 680 SE2d 541) (2009) ("[B]ecause [the defendant] denied any contact with [the victim], the evidence presented at trial did not afford the jury the alternative of finding him guilty of sexual battery in lieu of child molestation."); McGruder v. State, 279 Ga. App. 851, 855 (2) (b) ( 632 SE2d 730) (2006) (charge on sexual battery not required where evidence showed the intent necessary for child molestation and defendant asserted that touching never occurred); Walker, 279 Ga. App. at 752 (same). 4. Finally, Smith argues that the trial court erred in instructing the jury as follows: "You are only concerned with the guilt or innocence of the defendant.
Because the indictment alleged and the evidence at trial authorized a finding that Adams committed aggravated child molestation on some date after July 1, 2006, we hold that the trial court could not be divested of jurisdiction pursuant to OCGA § 15-11-28 (b) (2) (B). See McGruder v. State, 279 Ga. App. 851, 852 (1) ( 632 SE2d 730) (2006). Therefore, the trial court correctly denied the motion to transfer the case to juvenile court.
. McGruder v. State, 279 Ga.App. 851, 854 (2) (632 S.E.2d 730) (2006) (citation and punctuation omitted). Gaston v. State, 307 Ga. 634, 642 (2) (d) (837 S.E.2d 808) (2020) (citations and punctuation omitted).
McGruder v. State , 279 Ga. App. 851, 854 (2), 632 S.E.2d 730 (2006) (citation and punctuation omitted). Additionally, the Supreme Court of Georgia has held:
Smith v. State , 310 Ga. App. 392, 396 (3), 713 S.E.2d 452 (2011) ; seeWalker , 279 Ga. App. at 751 (3) (a), 632 S.E.2d 482 (explaining that if an indictment alleged child molestation, and if the evidence presented at trial was sufficient to show an intentional touching of the child's intimate parts, but without the intent necessary to prove child molestation, a charge on sexual battery as a lesser included-offense would be required); Strickland v. State , 223 Ga. App. 772, 776 (1) (b), 479 S.E.2d 125 (1996), overruled on other grounds byWatson v. State , 297 Ga. 718, 777 S.E.2d 677 (2015) (same).SeeSmith , 310 Ga. App. at 396 (3), 713 S.E.2d 452 (holding that the defendant was not entitled to jury charge on sexual battery as a lesser included offense of child molestation because defendant did not defend the case on ground that he touched victim without intent and instead pursued "all or nothing" defense that victim made up her entire story); McGruder v. State , 279 Ga. App. 851, 855 (2) (b), 632 S.E.2d 730 (2006) (holding that charge on sexual battery not required when evidence showed the intent necessary for child molestation and defendant asserted that touching never occurred); Walker , 279 Ga. App. at 752 (3) (a), 632 S.E.2d 482 (same).--------
The evidence in this case offered the jury a choice between a completed crime or no crime. See McGruder v. State, 279 Ga.App. 851, 855(2)(b), 632 S.E.2d 730 (2006) ; Williams v. State, 248 Ga.App. 316, 320(4), 546 S.E.2d 74 (2001) ; Ney v. State, 227 Ga.App. 496, 502 –503(4)(g), 489 S.E.2d 509 (1997) (no error in failing to charge simple battery where evidence shows defendant fondled victim, not merely that he made physical contact of an insulting or provoking nature). Additionally, we note that it is not clear whether simple battery may ever be a lesser included offense of child molestation.
(Punctuation omitted.) Hilliard v. State, 298 Ga. App. 473, 475 (2) ( 680 SE2d 541) (2009), citing McGruder v. State, 279 Ga. App. 851, 855-856 (2) (b) ( 632 SE2d 730) (2006).See Walker v. State, 279 Ga. App. 749, 751 (3) (a) ( 632 SE2d 482) (2006).
(Punctuation omitted.) McGruder v. State, 279 Ga. App. 851, 855-856 (2) (b) ( 632 SE2d 730) (2006). Both Hilliard and the State concede that the indictment contained the necessary elements of sexual battery. Nevertheless, the State contends, and we agree, that there was no evidence presented at trial that warranted a charge on sexual battery. Hilliard's theory of the case, as evinced by his questions to the witnesses, and his statement to police, which was admitted into evidence (he did not testify at trial), consisted of attacking J. C.'s veracity and denying that he had any physical contact with her. Thus, because Hilliard denied any contact with J. C., the evidence presented at trial did not afford the jury the alternative of finding him guilty of sexual battery in lieu of child molestation.
(Citation and punctuation omitted.) McGruder v. State, 279 Ga. App. 851, 855 (2) (b) ( 632 SE2d 730) (2006). The offense of child molestation requires a showing that a person committed "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.
(Citation and punctuation omitted.) McGruder v. State, 279 Ga. App. 851, 855 (2) (b) ( 632 SE2d 730) (2006). Engle was not entitled to a new trial on this basis.