concurring specially.
I agree with the result reached in this case but not with the reasoning advanced by the majority. As noted by the majority, the issue in this case is one of statutory construction. “[0]ur legislature has indicated by specific language when it intends to include unborn *248children within the contemplation of a criminal statute.” State v. Luster, 204 Ga. App. 156, 157 (1) (a) (419 SE2d 32) (1992) (physical precedent only). In fact, just this year the General Assembly amended several statutes to bring unborn children within their purview and created several new crimes, including battery of an unborn child. See Ga. L. 2006, Act No. 654 (S.B. 77). Accordingly, we must presume that the General Assembly’s failure to specifically refer to unborn children or pregnancy in the family violence simple battery provision was “a matter of considered choice.” (Citation and punctuation omitted.) Inland Paperboard & Packaging v. Ga. Dept. of Revenue, 274 Ga. App. 101, 104 (616 SE2d 873) (2005). Indeed, subsection (c) of the same statute elevates punishment for “[a]ny person who commits the offense of simple battery ... against a female who is pregnant at the time of the offense” to a misdemeanor of a high and aggravated nature. OCGA § 16-5-23 (c). “It is generally presumed that [the General Assembly] acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another.” (Citation and punctuation omitted.) BFP v. Resolution Trust Corp., 511 U. S. 531, 537 (114 SC 1757, 128 LE2d 556) (1994). Therefore, I agree that the sentence in this case must be vacated.
Decided July 3, 2006. Ashleigh B. Merchant, Cynthia S. Griffin, Joshua G. Schiffer, for appellant. Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.I am authorized to state that Presiding Judge Johnson and Presiding Judge Smith join in this special concurrence.