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Agan v. State

The trial court plainly erred in charging the jury on statutory rape under the age of 16, as it failed to instruct the jury "that it may not render a guilty verdict without determining that evidence corroborating the victim's testimony was presented."

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In these consolidated cases, Gregory Agan appeals from his conviction of one count of statutory rape Count 8, contending the trial court gave an erroneous jury charge. While he does not assert any error with regard to his remaining convictions for three counts of aggravated sodomy, four counts of aggravated child molestation, and three counts of child molestation involving three victims,1 he contends in a second enumeration of error that his sentence on one count of child molestation should be vacated because it was merged into his statutory rape conviction. The State laudably concedes that both of these claimed errors have merit. Based upon our review of the record and the trial court’s charge, we agree and reverse Agan’s statutory rape conviction, vacate his sentence for child molestation Count 7 in Case No. 10CR00912, and remand for resentencing.

1. The record shows that the trial court instructed the jury as follows:

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