dissenting.
Because the majority errs in several ways, I respectfully dissent. It assumes that it can intuitively discover “the conduct that the jury determined to have occurred in this case,” majority op., p. 5; it ignores the clear legislative framework in which the General Assembly defines the separate and distinct crimes of statutory rape and aggravated child molestation; and it confuses the relationships regarding merger of crimes and lesser included offenses.
This Court cannot determine what the jury concluded about the facts of this case. It can only determine whether there was sufficient evidence for the jury to find that Dixon’s conduct constituted the crimes of statutory rape and aggravated child molestation, see Hines v. State, 276 Ga. 491, 492 (2) (578 SE2d 868) (2003), and there was. Verdicts of acquittal on any of the other counts in the indictment do not necessarily show that the State failed to prove those charges, but “may reflect a compromise or lenity by the jury.” Id.
The majority approaches this case as though the crimes of statutory rape and aggravated child molestation are one and the same. But they are not. The General Assembly has defined aggravated child molestation as follows:
(a) A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.
(c) A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.
OCGA § 16-6-4. Statutory rape is defined by the General Assembly as follows:
*13A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.
OCGA § 16-6-3 (a). Contrary to the majority’s assertion, the punishment provisions of OCGA § 16-6-3 (b)18 are not part of the definition of this crime.
Thus, for an act to be considered statutory rape, the State must prove only that the defendant engaged in sexual intercourse with a person under the age of 16, outside of marriage. The age of the perpetrator is irrelevant to the commission of the crime; it is relevant only as to punishment.19 By contrast, for the crime of aggravated child molestation to be committed, sexual intercourse need not occur, although it may. But that is not the end of the analysis. To prove this crime, the State must establish not only that the victim was under the age of 16, but that the act involved was indecent or immoral, that arousal or satisfaction of the sexual desires of the defendant or the child was the intent of the act, and that, as alleged in this case, the child was physically injured by the act;20 none of these elements must be proved to establish the crime of statutory rape. To say that the General Assembly intended that statutory rape and aggravated child molestation are to be governed by OCGA § 16-6-3 alone ignores the plain language used by the General Assembly in advancing two separate and distinct statutory expressions of these two crimes, which have different elements.21 Contrary to the majority’s characterization, majority op., p. 5, there is no “conflict” between the statutes governing statutory rape and aggravated child molestation; *14clearly, when, as here, the sexual act involves injury to the victim, the General Assembly intended that the aggravated child molestation statute apply.
Nor is there any legislative history supporting the majority’s analysis. The 1995 amendment, referred to by the majority, is part of the “Child Protection Act of 1995.” Ga. L. 1995, p. 957 et seq. As part of that Act, and at the same time the General Assembly was providing for misdemeanor punishment in certain statutory rape cases, it raised the age of a “child” for purposes of child molestation offenses from 14 to 16. See Ga. L. 1995, pp. 957-958, §§ 3, 4. The preamble to the Act states that its purpose is to increase the minimum punishment for aggravated child molestation, and to “increase the penalties for sexual exploitation of children.” Clearly, had the General Assembly wished to embrace the measure of punishment set forth in the majority opinion, it would have done so. But it did not; it continued statutory rape and aggravated child molestation as separate crimes, and did not reduce the punishment for aggravated child molestation based upon the ages of the victim and perpetrator. In 1996, the General Assembly made no change regarding the felony crime of aggravated child molestation, and the only change it made that was relevant to the crime of statutory rape did not affect the definition of that crime; it dealt only with punishment. See Ga. L. 1996, p. 1117, § 4. That the General Assembly removed a measure of the trial court’s sentencing discretion did not alter the nature of the acts prohibited. There is nothing in either the 1995 or 1996 enactments that supports the conclusion that the General Assembly intended that aggravated child molestation and statutory rape be considered one crime.
The proper analysis is that, in this case, statutory rape is, as a matter of fact, a lesser included offense of aggravated child molestation. When one offense is “established by the same but less than all of the facts required to establish” another offense, the first merges into the second as a matter of fact. Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710) (1992). See OCGA § 16-1-6. That is what occurred in this case. Evidence of the victim’s age, her marital status, and Dixon’s sexual intercourse with her completely established the crime of statutory rape. It is the additional elements: the indecent or immoral nature of the intercourse; the intent to sexually arouse or satisfy; and the injury to the victim, that established the greater crime of aggravated child molestation. Because proving the statutory rape did not “use up” all the evidence necessary to prove the aggravated child molestation, the crimes are not identical and did not merge. See Taylor v. State, 275 Ga. 461, 462 (1) (569 SE2d 520) (2002).
The majority does not specifically address the relationships between merger of crimes and lesser included offenses because it *15cannot, for to do so requires a result different from that reached by it. But because of these concepts, the State can charge Dixon with a variety of offenses, all with differing elements, and all based on the same essential facts, and allow the jury to determine what, if any, crimes were proved at trial. That is what occurred. The injustice that must be avoided is sentencing Dixon for violating both statutes when the evidence needed to prove one crime is “used up” in proof of the other. See Taylor, supra; State v. Tiraboschi, 269 Ga. 812, 813-814 (504 SE2d 689) (1998). And that injustice was properly avoided in this case; the trial court sentenced Dixon only for the greater crime of aggravated child molestation, not for the lesser included crime of statutory rape. Since Dixon’s conduct may have established the commission of more than one crime, the State is not limited to putting him on trial for a single violation; the adjustment is made at the time of sentencing. Tiraboschi, supra.
As previously stated, the majority opinion does not address merger and lesser included offenses directly, but it does attempt to distance itself from their operation in Division 2, majority op., p. 7. There, the majority recognizes that “simple” child molestation is a “necessary element” of aggravated child molestation, and thus a lesser included crime of that greater offense. See Carter v. State, 269 Ga. 420, 423 (5) (499 SE2d 63) (1998). And while the majority reaches to equate statutory rape and “simple” child molestation, it ignores the necessary conclusion that, if these two crimes are one and the same, then the crime of statutory rape is a lesser included offense of aggravated child molestation, because it is aggravated child molestation that has additional elements, including harm to the victim.
The majority summarily dismisses the harm proved to have been suffered by the teenaged victim as “slight vaginal injuries.” In fact, the evidence showed these “slight vaginal injuries” to be a tearing of the hymen and the bruising of the vaginal orifice. But despite mischaracterizing these injuries, the majority’s analysis does not depend upon their “slight” nature to relieve Dixon from punishment for his conviction of aggravated child molestation. Rather, the majority declares the injuries, which make the act of child molestation aggravated, to be irrelevant. The majority states that before the crime of child molestation can be considered aggravated, the defendant’s act must first satisfy the statutory definition of child molestation, but the majority has declared that Dixon’s act will only be considered to be statutory rape. Thus, regardless of whether the victim suffers the most horrific injuries, or only “slight” injuries, the majority has decided that if the defendant’s act can also be described as statutory rape, that is the only crime for which he may be convicted *16and punished. Had the majority properly recognized the issues of factual merger and lesser included offenses, this circumstance would not arise.
Decided May 3, 2004 Reconsideration denied June 4, 2004. Fred R. Simpson, McKenna, Long & Aldridge, David Balser, James D. Dantzler, Jr., James A. Washburn, Thomas B. Bosch, for appellant. Leigh E. Patterson, District Attorney, John F. McClellan, Jr., Assistant District Attorney, for appellee. Brenda J. Bernstein, Nicholas A. Lotito, Covington & Burling, Michael E. Paulhus, William D. Iverson, Claire G. Kunstling, amici curiae.As the crimes of statutory rape and aggravated child molestation are not shown by the exact same facts in this case, the rule of lenity has no application. The majority cites Brown v. State, 276 Ga. 606, 608-609 (1) (b) (581 SE2d 35) (2003), in support of its application of the rule, but in doing so it does not discern the facts of that case, and therefore the circumstances whereby application of the rule is appropriate. In Brown, the evidence used to establish one crime was, without more, the same evidence used to establish the second crime. Thus, there was a complete factual merger of the two offenses. However, when, as here, the evidence needed to prove each crime differs, the crimes are separate and distinct, and the concept of lesser included offenses governs, not the rule of lenity.
The majority “encourages” the General Assembly to distinguish between statutory rape and aggravated child molestation, and to clarify what conduct is to be punished as aggravated child molestation. But the General Assembly has already done so. It is the majority which has clouded the law and chosen to construct a result different from that mandated by the duly enacted statutes, and from the jury’s verdicts.
I am authorized to state that Justice Carley and Justice Thompson join in this dissent.
OCGA § 16-6-3 (b) reads:
A person convicted of the offense of statutory rape shall be punished by imprisonment for not less than one nor more than 20 years; provided, however, that if the person so convicted is 21 years of age or older, such person shall be punished by imprisonment for not less than ten nor more than 20 years; provided, further, that if the victim is 14 or 15 years of age and the person so convicted is no more than three years older than the victim, such person shall be guilty of a misdemeanor.
No question is presented here of the minimum age for a person to he held criminally responsible for an act. See OCGA § 16-3-1.
There was no allegation of sodomy in the indictment. See OCGA § 16-6-4 (c).
Similarly, forcible rape and aggravated child molestation are separate and distinct crimes, with different elements. Thus, the majority’s citation of, and insertion of language into, the concurrence in State v. Collins, 270 Ga. 42, 46 (508 SE2d 390) (1998), is inappropriate and a misuse of the text of that concurrence; there is no connection between the legislative framework concerning the crimes of rape and statutory rape, and the legislative definition of aggravated child molestation. And the concurrence cited by the majority does not suggest any such connection.