¶1concurring specially.
¶2In regard to Division 4 of the opinion I agree that any error in denying the requested charge on attempted rape is moot because defendant was not found guilty of attempted rape. Moreover, I would note that the charge requested by defendant on attempted rape was a misstatement of the law and was therefore properly denied. Defendant was charged not with rape but with criminal attempt, for which it must only be shown that he had taken a “substantial step toward the commission of [rape].” OCGA § 16-4-1. Because force is simply one element of rape, I see no reason why the use of force must be shown to support a finding of attempted rape so long as the evidence shows defendant took some other “substantial step” toward committing rape.
¶3In this case the indictment for attempted rape alleged, in particular, that defendant “did attempt to penetrate the vagina [of the minor child] forcibly and against her will.” Thus, defendant could have requested a charge stating that in order to be found guilty as charged, the allegation of force must have been proven. However, the instruction requested did not appropriately address the specific allegations in the indictment but, instead, set forth a mistatement of the law.
¶4I am authorized to state that Judge Beasley joins in this special concurrence.