                                  FOURTH DIVISION
                                   DILLARD, P. J.,
                                  RAY and SELF, 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


                                                                        May 18, 2017




In the Court of Appeals of Georgia
 A17A0052. THE STATE v. CRIST.

      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,1 the evidence shows

that on May 15, 2012, then-14-year-old D. M. reported to a teacher that her




      1
          See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).
stepfather, Crist, had been molesting her. The school immediately contacted D. M.’s

mother and the police, and D. M. made a report to a police officer.

      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.



                                          2
      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




                                            3
instructions included the complete instructions on sexual battery,2 the written

instructions were provided to the jury before they began their deliberations, and the

definition of sexual battery had been underlined by one of the jurors during

deliberation, the trial court found that this was “unsubstantiated evidence that the

error did not affect the outcome of the proceedings[.]” And the court declared that it

would not “assume that all jurors read the definition of sexual battery in the jury

room.” The court further found that this error affected Crist’s “substantial rights” and

significantly affected the fairness, integrity, or public reputation of the judicial

process because the jury should have been instructed on the elements of each crime

at the same time to ensure fairness and “should not have been required to rely solely

on the written charge.” This appeal by the State follows.3

      2
        The written instructions provided to the jury stated: “A person commits sexual
battery when when [sic] that person intentionally makes physical contact with the
genital area, groin/inner thigh, buttocks, or brests [sic] of another person without the
consent of the other person.” This instruction was based on the pattern jury
instruction. See Suggested Pattern Jury Instruction, Vol. II: Criminal Cases (2016),
§ 2.38.70.
      3
         See OCGA § 5-7-1 (a) (8) (An appeal may be taken by the State “[f]rom an
order, decision, or judgment of a court granting a motion for new trial or an
extraordinary motion for new trial[.]”). Crist filed a motion to dismiss the State’s
appeal on the basis that it failed to include an accurate jurisdictional statement in its
brief, as required by Court of Appeals Rule 25 (a) (2). But the failure to include a
jurisdictional statement “does not afford a basis for dismissal of the appeal.”

                                           4
      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.4 Additionally, while the “first grant of a new trial on general grounds is


All-Georgia Dev., Inc. v. Kadis, 178 Ga. App. 37, 38 (1) (341 SE2d 885) (1986). See
also Park v. Minton, 229 Ga. 765, 768 (1) (194 SE2d 465) (1972) (noting that court
rule requiring jurisdictional statement is “directory only, and not jurisdictional”).
Furthermore, as set forth supra, jurisdiction is proper in this case under OCGA § 5-7-
1 (a) (8).
      4
        See OCGA § 16-6-22.1 (b) (“A person commits the offense of sexual battery
when he or she intentionally makes physical contact with the intimate parts of the
body of another person without the consent of that person.”); Watson v. State, 297 Ga.
718, 719 (2) (777 SE2d 677) (2015) (same); Hamrick v. State, 304 Ga. App. 378,
378-79 (1) (696 SE2d 403) (2010) (holding that victim’s testimony that the defendant
touched his “private part” was sufficient to sustain conviction for sexual battery); In
the Interest of J. L. B., 280 Ga. App. 556, 560 (5) (634 SE2d 514) (2006) (holding
that victim’s testimony that juvenile grabbed her breasts, crotch, and buttocks was
sufficient to support delinquency adjudication based on sexual battery); see generally

                                           5
reviewed for abuse of discretion,”5 this Court reviews “de novo the trial court’s first

grant of a new trial on a special ground involving a question of law.”6 And here, the

trial court granted Crist a new trial on a special ground, namely that the court’s failure

to give an oral charge on sexual battery was plain error.

      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




Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
      5
        State v. James, 292 Ga. 440, 441 (1) (738 SE2d 601) (2013); see OCGA § 5-
5-50 (“The first grant of a new trial shall not be disturbed by an appellate court unless
the appellant shows that the judge abused his discretion in granting it and that the law
and facts require the verdict notwithstanding the judgment of the presiding judge.”).
      6
        James, 292 Ga. at 441 (1); accord State v. Kelly, 290 Ga. 29, 30-31 (1) (718
SE2d 232) (2011); see OCGA § 5-5-25 (“In all motions for a new trial on other
grounds not provided for in this Code, the presiding judge must exercise sound legal
discretion in granting or refusing the same according to the provisions of the common
law and practice of the courts.”).

                                            6
charge constitutes plain error which affects the substantial rights of the parties.”7 In

such cases, the proper inquiry is whether “the instruction was erroneous, whether it

was obviously so, and whether it likely affected the outcome of the proceedings.”8 In

this regard, our Supreme Court has adopted the four-part federal plain-error standard:

      First, there must be an error or defect—some sort of deviation from a
      legal rule—that has not been intentionally relinquished or abandoned,
      i.e., affirmatively waived, by the appellant. Second, the legal error must
      be clear or obvious, rather than subject to reasonable dispute. Third, the
      error must have affected the appellant’s substantial rights, which in the
      ordinary case means he must demonstrate that it affected the outcome of
      the trial court proceedings. Fourth and finally, if the above three prongs
      are satisfied, the appellate court has the discretion to remedy the
      error—discretion which ought to be exercised only if the error seriously
      affects the fairness, integrity or public reputation of judicial
      proceedings.9



      7
         OCGA § 17-8-58 (b); see Alvelo v. State, 290 Ga. 609, 614 (5) (724 SE2d
377) (2012) (holding that OCGA § 17-8-58 (b) requires an appellate court to review
for plain error an alleged jury-instruction error to which no objection was raised at
trial); Wheeler v. State, 327 Ga. App. 313, 318 (3) (758 SE2d 840) (2014) (same).
      8
        Alvelo, 290 Ga. at 615 (5) (punctuation omitted); accord Wheeler, 327 Ga.
App. at 318 (3).
      9
        Kelly, 290 Ga. at 33 (2) (a) (punctuation and emphasis omitted) (quoting
Puckett v. United States, 556 U.S. 129, 135 (II) (129 SCt 1423, 173 LE2d 266)
(2009)); accord Smart v. State, 299 Ga. 414, 420-21 (3) (788 SE2d 442) (2016).

                                           7
Consequently, because Crist failed to object to the jury charges, our review is limited

to determining whether plain error occurred.10 Moreover, as our Supreme Court has

emphasized, satisfying the plain-error standard “is difficult, as it should be.”11 And

the burden of establishing plain error falls squarely on the defendant.12

       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


       10
         See OCGA § 17-8-58 (b); see also State v. Alvarez, 299 Ga. 213, 214 (1)
(790 SE2d 66) (2016) (noting that when trial counsel fails to object to a jury charge,
appellate courts must review the issue under the plain-error doctrine); Wheeler, 327
Ga. App. at 318 (3).
       11
         Kelly, 290 Ga. at 33 (2) (a) (punctuation omitted) (quoting Puckett, 556 U.S.
at 135 (II)).
       12
         See Anderson v. State, 299 Ga. 193, 196 (2) (787 SE2d 202) (2016) (“To
show plain error, [the defendant] must establish not only that the jury instruction was
erroneous, but also that it was obviously so and that it likely affected the outcome of
the proceedings.” (punctuation omitted)); Murray v. State, 295 Ga. 289, 294 (3) (759
SE2d 525) (2014) (“Appellant has failed to show plain error under the four-pronged
test adopted in State v. Kelly, in that appellant has failed to show that the instruction
was erroneous, the error was obvious, the instruction likely affected the outcome of
the proceedings, and the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” (citation and punctuation omitted)); see also
Jones v. United States, 527 U.S. 373, 394-95 (II) (B) (119 SCt 2090, 144 LE2d 370)
(1999) (noting that it is the defendant’s “burden of showing that the error actually
affected his substantial rights”); United States v. Olano, 507 U.S. 725, 734 (II) (A)
(113 SCt 1770, 123 LE2d 508) (1993) (explaining that under federal plain-error
analysis, “[i]t is the defendant rather than the Government who bears the burden of
persuasion with respect to prejudice”).

                                            8
a whole and not out of context when making determinations as to its correctness.”13

And for purposes of plain-error analysis, the “charge” includes “not only . . .

instructions given orally to the jury, but necessarily must apply to any written

instructions given to the jury.”14 In this regard, at the start of Crist’s trial, the trial

court read the indictment to the jury, including the three charges of sexual battery. In

its relevant parts, the indictment charged that Crist: “intentionally made physical

contact with the intimate parts of the body of D. M., a child under the age of sixteen

years, by placing his hand upon” her buttocks, breast, and vagina, “without the

consent of said child.”15 After closing arguments, the court instructed the jury, “I’m

going to give you the law that applies to this case. You’re going to have a copy of this

out with you, so you don’t have to try to write it all down. It’s a lengthy charge . . .


       13
         Minor v. State, 328 Ga. App. 128, 132 (2) (a) (761 SE2d 538) (2014)
(punctuation omitted); see Drayton v. State, 297 Ga. 743, 748-49 (2) (b) (778 SE2d
179) (2015) (explaining that before a jury charge will be considered reversible error,
it must be considered in the context of the jury instructions as a whole); Guajardo v.
State, 290 Ga. 172, 176 (4) (718 SE2d 292) (2011) (same).
       14
         Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 SE2d 366) (2012); see
Murray v. State, 295 Ga. 289, 294 (3) (759 SE2d 525) (2014) (considering court’s
oral and written instructions).
       15
        See OCGA § 16-6-22.1 (b) (“A person commits the offense of sexual battery
when he or she intentionally makes physical contact with the intimate parts of the
body of another person without the consent of that person.”).

                                            9
.” And the trial court reminded the jury that it had read the indictment and that the

jury would have a copy of the indictment as well, before it further instructed the jury

on the presumption of innocence and the State’s burden to prove Crist’s guilt beyond

a reasonable doubt. The court then specifically instructed the jury: “The burden of

proof rests upon the State to prove every material allegation of the indictment and

every essential element of the crime or crimes charged beyond a reasonable doubt.”

After giving additional instructions on the meaning of reasonable doubt, the

consideration of the evidence, and criminal intent, the court charged the jury on the

elements of child molestation and on the statute of limitation for child molestation

and sexual battery, but failed to give any oral instructions on the elements of sexual

battery. After the court explained the verdict form and gave its final instructions, the

jury began deliberations.

      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,16

Crist has failed to show that this omission likely affected the outcome of the


      16
         See, e. g., Essuon v. State, 286 Ga. App. 869, 872 (2) (650 SE2d 409) (2007)
(reversing the defendant’s convictions on two counts of criminal solicitation to
commit a felony (murder) where the instructions as a whole failed to define the terms
“felony” and “murder,” which were essential elements of the crime charged).

                                           10
proceedings. Notably, the indictment, including the elements of the charge of sexual

battery, was read to the jury; the jury was instructed that it had to find each element

in the indictment beyond a reasonable doubt; and the indictment was sent into the jury

room.17



      17
          See Anderson, 299 Ga. at 196 (2) (holding defendant did not establish that
the trial court’s failure to instruct the jury that it had to find the defendant had a
firearm “within arm’s reach” likely affected the outcome of the proceeding where the
“element was properly included in . . . the indictment, that indictment was read to the
jury, the trial court charged the jury that the State had to prove every material
allegation in the indictment beyond a reasonable doubt, and the trial court reminded
the jury that it would have the indictment in the jury room ‘during your deliberations
in order that you may examine the specific allegations against these defendants’”);
see also Miller v. State, 289 Ga. 854, 861 (8) (717 SE2d 179) (2011) (holding that
“deviation from the indictment to the jury charge” by omitting an element of first
degree arson “is not error where the trial court read the indictment in full to the jury
and charged the jury that the State must prove each element of the crime as charged
beyond a reasonable doubt”). But c.f. Aguilar v. State, __ Ga. App. __ (1) (798 SE2d
60, 62) (2017) (holding that earlier reading of the indictment could not save the
court’s erroneous sexual-battery instruction, which omitted the element of lack of
consent, because sexual battery was a lesser-included charge and was not included
in the indictment).
       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.

                                           11
       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.18 To be sure, the better practice would have been to include all

instructions in the oral charge following closing arguments. Nevertheless, the trial

court’s written and oral instructions, as a whole, adequately informed the jury of the

charges.19 Moreover, the elements of both child molestation and sexual battery were

       18
          See Anderson v. State, 262 Ga. 26, 27 (3) (a) (413 SE2d 732) (1992) (“[W]e
think it is frequently desirable that instructions which have been reduced to writing
be not only read to the jury but also be handed over to the jury. . . . We see no good
reason why the members of the jury should always be required to debate and rely
upon their several recollections of what a judge said when proof of what he said is
readily available.”) (citing Copeland v. United States, 152 F2d 769, 770 (D. C. Cir.
1945)); accord Reese v. State, 241 Ga. App. 350, 351-52 (3) (526 SE2d 867) (1999).
       19
         See Miner v. State, 268 Ga. 67, 68 (3) (485 SE2d 456) (1997) (holding that
the failure to include “language charging that the burden of proof is upon the State
to prove beyond a reasonable doubt that the murder offense is not mitigated by
provocation or prejudice” in oral charge, where it was included in written charge, was
not reversible error); see also Arthur v. Walker, 285 Ga. 578, 580 (679 SE2d 13)
(2009) (noting, in affirming denial of habeas corpus petition based on ineffective
assistance in failing to object to court’s slip of the tongue during oral charge, that “the
trial court sent out a written copy of the jury instructions to the jury, which would
have included a full and correct version of the charge . . . unfettered by the trial
court’s inadvertent slip of the tongue”). But see Cheddersingh, 290 Ga. at 682 (2)
(although oral instructions informed the jury that the defendant was innocent until
proven guilty and burden was upon the State and never shifted to the defendant, it
was plain error to use pre-printed verdict form which required jury to find defendant

                                            12
underlined on the written jury instructions that went out with the jury. Thus, while the

trial court found that the notations on the written instructions were “unsubstantiated”

evidence that the error did not affect the proceedings and declared that it would not

“assume” that the jury read the instructions,20 its reasoning was misguided. The

burden was on Crist, not the State, to show that the error likely affected the outcome

of the trial.21 And here, we can find no evidence that the jury misunderstood the

instructions on sexual battery or any other topic. Rather, the record, including the

acquittal of Crist on charges of child molestation, shows that the jury understood the

law and the evidence before it.22


not guilty beyond a reasonable doubt).
      20
         We find the trial court’s refusal to “assume” that the jury read the written
instructions curious, given its statement—immediately following closing
arguments—that the jury would have a copy of the written instructions in the jury
room and that the members did not need to write down the lengthy oral charge.
      21
          See note 12, supra. We note that Crist made no presentation of evidence at
the hearing on his motion for new trial, but simply rested on his motion and brief. In
his brief, he made no argument that the instructional error likely affected the outcome,
merely asserting that the court’s charge on sexual battery was plain error because it
failed to instruct the jury that the State was required to prove lack of consent.
      22
         Cf. Heard v. State, 287 Ga. 554, 559 (4) (697 SE2d 811) (2010) (holding that
trial court did not err in denying defendant’s motion for severance when verdict,
including acquittal for some charges, showed the jury understood law and evidence);
Algren v. State, 330 Ga. App. 1, 4 (1) (764 SE2d 611) (2014) (same).

                                          13
      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,23 we conclude that the trial court erred in granting Crist’s motion

      23
          Other cases upon which Crist relies are distinguishable. Specifically, in
Stanbury v. State, 299 Ga. 125 (786 SE2d 672) (2016), our Supreme Court found
plain error where the trial court failed to instruct the jury that the testimony of an
accomplice had to be corroborated and the accomplice testimony “served as the
bedrock of the conviction because he was the only witness who affirmatively
identified” the defendant. Id. at 129-31 (2). Because the jury was not “properly
instructed on the manner in which they needed to judge this evidence,” the error
likely affected the outcome of the proceedings. Id. at 131 (2). But here, the jury was
properly instructed on how to consider the evidence. In State v. Alvarez, 299 Ga. 213
(790 SE2d 66) (2016), our Supreme Court also found plain error in the trial court’s
failure to give any instruction on the defense of justification when “justification was
the critical disputed issue at trial.” Id. at 214-15 (1). Pertinently, in these cases and
other cases finding plain error based on the omission of a jury instruction, the
instruction was omitted entirely from the jury’s consideration. See, e.g., Alvarez, 299
Ga. at 214-15 (1) (finding plain error where trial court failed to give any instruction
on the defense of justification); Stanbury, 299 Ga. at 129 (1) (finding plain error
where trail court failed to instruct that the testimony of an accomplice must be
corroborated); Aguilar, 798 SE2d at 62-63 (1) (finding plain error where “jury
instruction wholly failed to charge the essential element of the crime of sexual
battery—lack of consent to the touching”); Patterson v. State, 328 Ga. App. 111, 116-
21 (4) (761 SE2d 524) (2014) (holding that failure to instruct jury that defendant had
to have knowledge that pill contained hydrocodone in order to convict him for
possession of hydrocodone was plain error); Wagner v. State, 311 Ga. App. 589, 591-
93 (2) (716 SE2d 633) (2011) (physical precedent only) (finding plain error in the
trial court’s use of a disapproved-instruction that shifted the burden of proof to the
defendant in a DUI case). In stark contrast, the oral and written instructions in this
case, as a whole, properly informed the jury of the elements of sexual battery. See

                                           14
for a new trial. Thus, we reverse the trial court’s grant of Crist’s motion for new trial

and reinstate his convictions for sexual battery.

      Judgment reversed. Ray and Self, JJ., concur.




Anderson, 299 Ga. at 196 (2) (finding no plain error where omitted element was
included in the indictment, which was read to the jury and sent to the jury room, and
jury was instructed to find the indictment allegations beyond a reasonable doubt);
Miner, 268 Ga. at 68 (3) (finding no plain error where written instructions were
correct).

                                           15
