Monteleone and Irvine's reports. The state's foundation objection was sustained and the trial court refused the admission of the two exhibits. Defendant requested the jury be instructed on the offense of child molestation in the first degree as a lesser-included offense of statutory sodomy. The trial court refused to instruct on the lesser-included offense of child molestation as to the two counts of statutory sodomy. Defendant was found guilty on all five counts.
Defendant raises three points on appeal.
In his first point, defendant alleges the trial court erred when it refused to submit to the jury his proffered instruction for the lesser-included offense of child molestation in the first degree as to the two counts of statutory sodomy. Defendant argues there was evidence that would support a conviction of child molestation and acquittal of statutory sodomy. The state admits child molestation is a lesser-included offense of statutory sodomy because the indictment included the same statutory age element for statutory sodomy as child molestation. Therefore, we must resolve whether there was a basis for submission of the lesser-included jury instruction. If there is a basis for a verdict of acquittal of the greater offense and conviction of the lesser, then a jury must be instructed on the lesser-included offense.