Specifically, this Court has held that a husband and wife who engaged in an "open and intentional act of sexual intercourse" with each other in the presence of five children could be convicted of child molestation. Grimsley v. State, 233 Ga. App. 781, 784-785 (1), 505 S.E.2d 522 (1998). This Court has also held that a defendant could be convicted of child molestation when he masturbated and watched pornography while a child was moving around the house and when he was aware that the child could see him.
Id. (citation and punctuation omitted). Moreover, โ[t]he intent with which an act is done is peculiarly a question of fact for determination by the jury[.]โ Grimsley v. State, 233 Ga. App. 781 , 784 (1) (505 SE2d 522 ) (1998) (citation and punctuation omitted). The evidence in this case authorized the jury to infer that Latta touched M. A.โs vagina over her clothing and that he intended to arouse his sexual desires or those of M. A. when he did so.
See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2007), ยงยง 2.30.12 (Rape; Victim 10 Years of Age or Older but Under the Age of 16), 2.34.10 (Child Molestation; After 7/1/95). See Forbes v. State, 284 Ga.App. 520, 523 (2), 644 S.E.2d 345 (2007) (considering the well-established body of law that an underage victim can not consent to intercourse, the trial court did not err in instructing the jury that a victim younger than 16 was legally incapable of consenting to intercourse); Grimsley v. State, 233 Ga.App. 781, 784-785 (1), 505 S.E.2d 522 (1998) (evidence was sufficient to support child molestation conviction where the defendant intentionally engaged in sexual activity with his wife in front of their underage children). See Johnson v. State, 198 Ga.App. 520, 521 (7), 402 S.E.2d 115 (1991).
The jury could also infer that Brown acted with the intent to arouse himself when he forced J.C. to watch a pornographic movie with him. See Grimsley v. State, 233 Ga.App. 781, 784โ785(1), 505 S.E.2d 522 (1998) (exposing children to explicit sexual acts is sufficient to support a conviction for child molestation). Finally, the fact that Brown fondled J.C.'s buttocks and forced her to touch his penis also supports the inference that Brown did these things with the intent to arouse or satisfy himself sexually.
(Citations and punctuation omitted.) Grimsley v. State, 233 Ga.App. 781, 784(1), 505 S.E.2d 522 (1998). See Coalson v. State, 237 Ga.App. 570, 571, 515 S.E.2d 882 (1999).
See Roberts, supra; Eubanks, supra; State v. Givens, 211 Ga. App. 71, 72 ( 438 SE2d 387) (1993) (a demurrer may properly attack only defects which appear on the face of indictment; a demurrer which seeks to add facts not so apparent but supply extrinsic matters must fail as a speaking demurrer). See generally Grimsley v. State, 233 Ga. App. 781, 784 (1) ( 505 SE2d 522) (1998) (rejecting appellant's challenge to sufficiency of evidence regarding whether he had the requisite intent to commit child molestation, where appellant had openly engaged in sexual activity with his wife at his home in the presence of children). PHIPPS, Judge.
The indictment alleged that Mote committed child molestation by having sexual intercourse with Gott in J. G.'s presence. J. G. stated that Mote came into the room while her father was performing oral sex on her. The jury was authorized to infer that Mote committed the indecent and immoral act of intentionally having sexual intercourse with Gott in the child's presence, given J. G.'s statements concerning Mote's and Gott's state of undress, how Mote and Gott had positioned their bodies, and Mote's action of "going up and down" on Gott. See Grimsley v. State, 233 Ga. App. 781, 784-785 (1) ( 505 SE2d 522) (1998) (open and intentional act of sexual intercourse in the presence of a child is an immoral and indecent act). Further, the jury could infer that Mote, by engaging in an act of sexual intercourse in the child's presence, intended to satisfy her sexual desires and those of the child.
Similarly, the evidence supported a finding that Klausen was masturbating while the child was on the sofa with him, and his actions are no less culpable because the child may not have been fully aware of what was occurring. See generally Grimsley v. State, 233 Ga. App. 781, 784-785 (1) ( 505 SE2d 522) (1998) (child molestation upheld where defendant had sexual intercourse in a room where five children were playing video games). Cf. United States v. Diaz-Ibarra, 522 F3d 343, 351 (II) (C) (4th Cir. 2008) (for purposes of sentence enhancement under federal law, "we believe that `a sexual abuser is guilty of "sexual abuse of a minor" even if he chooses very young victims, molests sleeping children, or otherwise conceals his lewd intent from the victims'") (citation omitted).
We fail to see how private, consensual intercourse with one's lawful spouse could constitute an immoral or indecent act sufficient to sustain a child molestation conviction. Compare Grimsley v. State, 233 Ga. App. 781, 784 (1) ( 505 SE2d 522) (1998) (by engaging in intercourse in front of children, a married couple's "consenting sexual activity . . . was transformed from acceptable and protected marital conduct into an immoral and indecent act within the meaning of OCGA ยง 16-6-4 (a)"). Including sexual intercourse within the child molestation statute, therefore, will not criminalize conduct otherwise deemed lawful by the statutory rape provision.
Shire v. State, 225 Ga. App. 306, 308 (1) (a) ( 483 SE2d 694) (1997). See also State v. Perry, 261 Ga. App. 886, 887 ( 583 SE2d 909) (2003) ("In the district attorney's [or solicitorgeneral's] role as an administrator of justice, he or she has broad discretion in making decisions prior to trial about whom to prosecute, what charges to bring, and which sentence to seek.") (citation, punctuation and footnote omitted); Grimsley v. State, 233 Ga. App. 781, 782 ( 505 SE2d 522) (1998) ("[T]he decision of whether to prosecute and what charges to file are decisions that rest in the prosecutor's discretion.") (citation omitted). Nor could the probate judge serve as the prosecuting official.