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Stuart v. State

Statutory rape is not a lesser included offense of forcible rape.

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A jury convicted Zorie W. Stuart of rape, aggravated child molestation, and child molestation, and the trial court sentenced him to life in confinement. Stuart argues on appeal that the trial court erred in failing to instruct the jury that statutory rape is a lesser included offense of rape. For the reasons that follow, we affirm.

During the charge conference, the trial court reviewed each of Stuart’s requests to charge. In response to the court’s recitation of the requested charge “Lesser Offense, of Statutory Rape,”1 the State objected because the elements of proof differ for the two crimes. After the State made its argument, the trial court asked Stuart, “What do you say” Stuart responded, “I have nothing to say. I believe that’s a correct statement of the law, that in statutory rape you do have to prove age. And you don’t in rape.” The trial court agreed with the State’s analysis, holding that statutory rape “could not be a lesser included offense of rape because there is one element in statutory rape that is not in forcible rape.” The trial court stated that the juror will “either find that there was force, or they will find that there was not force. If they find there was not force, then they will find him not guilty of rape,” and that it would not give the defendant’s charge related to “the lesser offense of statutory rape.” After the court completed its charge to the jury and asked for objections, Stuart responded, “No objections, Judge.”

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