The question for decision in this appeal is whether Powell v. State,1 which struck down the sodomy statute insofar as it applies to private, non-commercial acts between consenting adults,2 impliedly struck down the solicitation of sodomy statute.3 We hold that it did not.
The victim, a waitress, was cleaning the men’s room of a restaurant when defendant Howard entered. The waitress told Howard that she was cleaning the restroom but would be finished in a few minutes. Howard turned, locked the door, “and would not let [the waitress] out.” Howard told the waitress that “he knew that [she] wanted it” and he offered her $20 for a “blow job.” The victim said “no” and shoved the money back at Howard. Then Howard pulled down his pants, exposed his genitals, grabbed the waitress, and tried to force her to perform oral sex. The waitress resisted; Howard took her head and banged it against the wall. When another person knocked on the restroom door, the waitress was able to open the door and escape.
Howard was arrested and charged with attempt to commit aggravated sodomy, solicitation of sodomy, and false imprisonment. He was convicted on all three charges, and this appeal followed.4
1. In Powell, supra, this Court ruled that non-commercial sodomy, conducted in private between consenting adults, is protected by the Georgia Constitution’s right to privacy. In so doing, we made it clear, however, that the right to privacy does not protect all sexual conduct:
*243Implicit in our decisions curtailing the assertion of a right to privacy in sexual assault cases involving sexual activity taking place in public, performed with those legally incapable of giving consent, performed in exchange for money, or performed with force and against the will of a participant, is the determination that the State has a role in shielding the public from inadvertent exposure to the intimacies of others, in protecting minors and others legally incapable of consent from sexual abuse, and in preventing people from being forced to submit to sex acts against their will.
Id. at 333.
We observed that, to fulfill its role, the State can protect the public by enacting legislation which criminalizes various forms of sexual conduct, including sexual conduct which can be said to take place in private, between consenting adults: e.g., sexual contact with prisoners, the institutionalized, and the patients of psychotherapists (OCGA § 16-6-5.1); incest (OCGA § 16-6-22); and solicitation of sodomy (OCGA § 16-6-15). Id. Thus, while we struck down the sodomy statute because it unconstitutionally violated the right to privacy when that right was exercised in private between consenting adults, Powell, supra at 332, we did not hold that the right to privacy protected sodomy generally; nor did we hold that it protected the solicitation of sodomy in particular.
There is no need to strike down the solicitation of sodomy statute in its entirety simply because, as written, it can be said to apply to constitutionally protected conduct. As this Court pointed out in City of Macon v. Smith, 244 Ga. 157, 158 (259 SE2d 90) (1979):
To withstand constitutional attack, a statute or ordinance which prohibits speech “must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression.” Gooding v. Wilson, 405 U. S. 518, 522 (92 SC 1103, 31 LE2d 408) (1972). In Gooding v. Wilson, supra, the United States Supreme Court held unconstitutional Code Ann. § 26-6303 which prohibited “opprobrious words or abusive language tending to cause a breach of the peace . . .” In that case, the Supreme Court held the statute unconstitutionally overbroad after finding that the Georgia appellate courts had not narrowed and limited the application of the statute to fighting words. The implication is clear that had there been such a narrowing construction, the language of the statute itself would be constitutionally permissible. Gooding, supra at 524.
*244See also Cunningham v. State, 260 Ga. 827, 831 (400 SE2d 916) (1991) (before considering whether statute that affects protected speech is overbroad, it must be determined if it can be narrowly construed by this Court). Thus, this Court can narrowly construe the solicitation of sodomy statute to only punish speech soliciting sodomy that is not protected by the Georgia Constitution’s right to privacy. See State of Ga. v. Davis, 246 Ga. 761, 762 (2) (272 SE2d 721) (1980) (narrowly construing criminal solicitation statute (OCGA § 16-4-7) to only embrace language which creates a clear and present danger that a felony will be committed).
It follows that Powell did not impliedly strike down the solicitation of sodomy statute. It also follows that, under the facts of this case, Howard’s conviction of solicitation of sodomy did not violate his right to privacy and free speech.
2. The evidence was sufficient to enable any rational trier of fact to find Howard guilty beyond a reasonable doubt of attempt to commit aggravated sodomy, solicitation of sodomy, and false imprisonment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Anderson v. State, 142 Ga. App. 282 (235 SE2d 675) (1977) (defendant convicted of solicitation of sodomy when she offered to give an undercover officer a “blow job” for $25).
3. Howard asserts the trial court erred in failing to merge the false imprisonment offense with the attempt to commit aggravated sodomy. We disagree. False imprisonment (OCGA § 16-5-41) and aggravated sodomy (OCGA § 16-6-2 (a)) are not included offenses as a matter of law. See Hardy v. State, 210 Ga. App. 811, 813 (3) (437 SE2d 790) (1993) (kidnapping and aggravated sodomy are not included offenses as a matter of law). Although these crimes may be included as a matter of fact when the same, or less than all the facts are used to prove both crimes, Hambrick v. State, 256 Ga. 148 (344 SE2d 639) (1986), the facts used to prove the false imprisonment were different from those used to show the essential elements of the attempt to commit aggravated sodomy. Peterson v. State, 212 Ga. App. 31 (441 SE2d 267) (1994); Dawson v. State, 203 Ga. App. 146 (416 SE2d 125) (1992).
Judgment affirmed.
All the Justices concur, except Fletcher, P. J., who concurs in judgment only, and Sears, J., who dissents.270 Ga. 327 (510 SE2d 18) (1998).
OCGA § 16-6-2.
OCGA § 16-6-15.
The crimes occurred on June 8, 1996. Howard was indicted on July 9, 1996, and charged with attempt to commit aggravated sodomy, solicitation of sodomy, and false imprisonment. Trial commenced on September 10, 1996, and the jury returned its verdict the same day. The trial court sentenced Howard to serve six years for the attempt to commit aggravated sodomy; six years (concurrent) for the false imprisonment; twelve months (consecutive) for solicitation of sodomy. On March 9, 1999, Howard filed a motion for an out-of-time appeal which was granted the same day. Thereafter, on March 19, 1999, the trial court denied Howard’s motion for a new trial. Howard filed a notice of appeal on April 14, 1999. The case was docketed in this Court on August 26,1999, and submitted for a decision on the briefs on October 18, 1999.