                               SECOND DIVISION
                                ANDREWS, P. J.,
                             MCFADDEN and RAY, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                   December 9, 2015




In the Court of Appeals of Georgia
 A14A0742. WATSON v. THE STATE.

      MCFADDEN, Judge.

      Patrick Watson was convicted on two counts of sexual battery against his

minor daughter and one count of child molestation against another victim. In our

opinion in Watson v. State, 329 Ga. App. 334 (765 SE2d 24) (2014), we affirmed his

convictions. In so doing, in Division 3 (b) of our opinion we rejected Watson’s

argument that the trial court erred in instructing the jury that “under Georgia law a

person under the age of sixteen lacks legal capacity to consent to sexual conduct.” Id.

at 338-340 (3) (b). In Watson v. State, __ Ga. __ (__ SE2d __) (Case No. S15G0385,

decided Sept. 14, 2015), the Supreme Court of Georgia reversed the judgment below

on the sexual battery convictions, “hold[ing] that this particular instruction is

improper when given in relation to the offense of sexual battery.” Id. at __. The
Supreme Court noted that Watson’s conviction on child molestation was not at issue

on certiorari and did not address any of the other grounds upon which Watson had

challenged his convictions.

      We therefore vacate Division 3 (b) of our opinion in Watson v. State, supra,

329 Ga. App. 334, which addressed the propriety of the jury instruction described

above, and in place of Division 3 (b) we adopt as our own the Supreme Court’s

opinion in Watson v. State, supra, __ Ga. __. Because the Supreme Court neither

addressed nor considered the other portions of our earlier opinion, and those other

portions are not inconsistent with the Supreme Court’s own opinion, those other

portions “become binding upon the return of the remittitur.” Shadix v. Carroll

County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001).

      Accordingly, the conviction for child molestation is affirmed and the

convictions for sexual battery are reversed.

      Judgment affirmed in part and reversed in part. Andrews, P. J., and Ray, J.,

concur.




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