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JOHNSON, Presiding Judge.
Judgment reversed. Smith, J., and Senior Appellate Judge Harold R. Banke concur.
Child molestation, etc. Barrow Superior Court. Before Judge McWhorter.
In this case, the trial court granted Rebecca Roberts' motion to quash, finding the facts in the indictment were insufficient to constitute a crime. The state appeals. We reverse.
The indictment at issue, which charges Roberts and two other individuals with child molestation and cruelty to children, states that Roberts "did act as a party to the crime in that she did aid, abet and encourage [two other individuals] by her failure to take steps to protect [her] child and by her failure to report said abuse."
1. Roberts moves this Court to dismiss the appeal as moot since the two other individuals with whom Roberts was indicted as a party to a crime were each acquitted of all charges against them. However, in Georgia, "[a]ny party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that [s]he was a party thereto, although the person claimed to have directly committed the crime . . . has been acquitted." OCGA 16-2-21. Thus, while the acquittal of the principals may be introduced by Roberts as some evidence that she did not aid, abet, or encourage any crime of child molestation or cruelty to children, it does not preclude her from being indicted, tried, convicted or punished for commission of the crime. See White v. State, 257 Ga. 236 (356 SE2d 875) (1987). Roberts' motion to dismiss is denied.
2. The state argues that the trial court erred in quashing Roberts' indictment because her presence and failure to act equals aiding and abetting and subjects Roberts to criminal liability "[A]n indictment is insufficient to withstand a demurrer if all of the facts which the indictment charges can be admitted and still the accused is innocent, but the indictment is sufficient, if taking the facts alleged as proven, the guilt of the accused follows as a legal conclusion." (Citations omitted.) State v. Pattee, 201 Ga. App. 690, 692 (411 SE2d 751) (1991).
Macklyn A. Smith, for appellee.
Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.
Thursday May 21 03:59 EDT

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