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Quenga v. State10/20/2004
t abuse its discretion in refusing to sever the offenses.
3. Quenga also contends that the trial court erred in charging the jury on the rape count by denying his written request to charge the jury on the lesser included offense of sexual battery.
At the charge conference, Quenga agreed with the trial court that under the facts of his case, a charge on sexual battery as a lesser offense of rape was inappropriate and withdrew his request for that charge. While ignoring the fact that he withdrew the request, Quenga correctly points out that if a defendant requests a charge on a lesser included offense and there is any evidence to support that lesser included offense, it must be charged. Elrod v. State, 265 Ga. App. 335, 337 (593 SE2d 879) (2004). But it is also true that " requested charge on a lesser included offense must be given only if the evidence actually warrants the requested charge." (Citations and punctuation omitted.) Cotton v. State, 274 Ga. 26 (2) (549 SE2d 71) (2001).
As Quenga agreed at the charge conference, under the facts of this case, no evidence supported a charge on sexual battery as a lesser included offense of rape. The evidence concerning the rape was obviously conflicting. The first victim testified that Quenga raped her. Quenga testified that he did nothing wrong. The jury therefore had a choice between rape and acquittal on this charge. The evidence would authorize nothing else. "Where, as here, the evidence establishes either the commission of the completed offense as charged, or the commission of no offense, the trial court is not authorized to charge the jury on a lesser included offense." (Citations and punctuation omitted.) Seay v. State, 276 Ga. 139, 140 (2) (576 SE2d 839) (2003).
Judgment affirmed. Johnson, P. J., and Phipps, J., concur.
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