DILLARD, Presiding Judge.
A jury convicted Carl Crist of three counts of sexual battery. Crist filed a motion for new trial, which the trial court granted because it found that, during the oral charge to the jury, it inadvertently omitted the elements of sexual battery. The State appeals, arguing that the trial court erred in granting Crist a new trial because he failed to carry his burden of establishing that the jury charge, taken as a whole, constituted plain error. We agree, and for the reasons set forth infra, reverse.
Viewed in the light most favorable to the jury's verdict,
When D. M. was approximately nine or ten years old, her mother began living with Crist. D. M. did not recall when the abuse began, but Crist frequently touched her on her chest, buttocks, and vagina with his hands. This happened more than 20 times. The abuse occurred in D. M.'s bedroom at night, while her mother was away at work. When Crist touched her, D. M. would tell him to stop and go away, and she would hit him. Although Crist would occasionally listen to her pleas, he continued to abuse D. M. At the time of her outcry, D. M. shared a bedroom with her three sisters, then twelve-year-old I. M., then four-year-old S. C., and then two-year-old A. C. At trial, I. M. confirmed that Crist would come into their room at night and "mess with" D. M. I. M. witnessed Crist pick up the covers on D. M.'s bed, and she heard D. M. yell at Crist to leave her alone and get out of their bedroom. I. M. also told police that Crist "molested" D. M. Moreover, D. M.'s mother argued with Crist about him going into the children's bedroom at night. She also discovered, on Crist's cell phone, a picture he had taken of D. M., from the waist down, sleeping. D. M. was wearing shorts in the picture, but her underwear was also showing.
At trial, the court admitted, over his objection, a portion of Crist's statement to police. Crist admitted to an investigator that he had gone into D. M.'s bedroom at night, and that he had physical contact with the child while in her room. Notwithstanding these admissions, Crist denied touching D. M. inappropriately. Crist told police that he believed D. M. had confused other behavior—such as his looking in D. M.'s bed for his cell phone, moving her leg onto the bed, and touching her waist to wake her up—with molestation.
Thereafter, Crist was charged by indictment with three counts of sexual battery and three counts of child molestation. The jury convicted him on all the sexual-battery counts and found him not guilty of the child-molestation counts. Crist filed a motion for new trial, arguing, inter alia, that the trial court failed to fully instruct the jury on the elements of sexual battery, in that the charge given by the court omitted the element of lack of consent. Following a hearing, the trial court granted Crist's motion, finding that, when it read the written instructions at the conclusion of the trial, it had inadvertently omitted the page of the instructions defining the crime of sexual battery. The court found that this was an obvious error. Although the written instructions included the complete instructions on sexual battery,
In its sole enumeration of error, the State argues that the trial court erred in granting Crist's motion for new trial because the jury instructions, taken as a whole, properly instructed the jury on the elements of sexual battery, such that the omission of the instructions during the oral charge did not constitute plain error. Specifically, the State asserts that Crist failed to show that the omission of the oral instruction on the elements of sexual battery likely affected the outcome of the trial and the court impermissibly shifted the burden to the State to show no plain error. We agree.
Although Crist does not directly challenge the sufficiency of the evidence as to his convictions for sexual battery, the evidence was sufficient to sustain the guilty verdicts.
In beginning our analysis, it is important to note that under OCGA § 17-8-58, "[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate." But Crist did not object to any portion of the trial court's jury instructions. His failure to so object precludes "appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties."
With these guiding principles in mind, we turn now to the State's specific claim of error. It is, of course, well established that "the charge to the jury is to be taken as a whole and not out of context when making determinations as to its correctness."
Given the foregoing, even assuming that the trial court's failure to include the elements of sexual battery in its oral charge to the jury constituted an obvious error,
Furthermore, the jury was told at the outset of the closing charge that it need not remember all of the court's instructions, which were 17 pages in length, and was given a complete set of written instructions, including the sexual-battery instruction, in the jury room.
In sum, because the trial court's instructions, when considered as a whole, properly instructed the jury on the law and Crist failed to show that the omission of the oral instruction on sexual battery at the close of trial likely affected the outcome of the proceedings,
Judgment reversed. Ray and Self, JJ., concur.
Crist asserts that Anderson is distinguishable from the case sub judice because whether the firearm was "within arm's reach" of the shooter was not disputed at trial. Here, Crist admitting touching D. M. in her bed, but denied doing so inappropriately, such that the disputed issue at trial was whether or not D. M. and I. M., who both reported that Crist touched D. M. without her consent, were credible witnesses. This distinction is of no consequence. In this case, the jury was properly instructed, via the reading of the indictment and the instructions as a whole, on the State's burden to prove lack of consent. See infra notes 18 and 19.