State v. Randle , 298 Ga. 375 ( 2016 )

In the Supreme Court of Georgia
Decided: January 19, 2016
S15G0946. THE STATE v. RANDLE.
HUNSTEIN, Justice.
Appellee Blake Randle is a registered sex offender who seeks release from
the sex offender registration requirements prescribed at OCGA § 42-1-12. In
this case, we granted the State’s petition for certiorari to consider one of the
criteria for eligibility for removal from the sex offender registry, namely, the
requirement that the offense that resulted in the offender’s inclusion on the
registry involved no “intentional physical harm” to the victim. See OCGA §§
42-1-19 (a) (4), 17-10-6.2 (c) (1) (D). The issue before us is whether the phrase
“intentional physical harm” in this context includes physical contact that, while
offensive and unwelcome, resulted in no physical pain or injury. We conclude
that it does not, and we therefore affirm the Court of Appeals in its affirmance
of the superior court’s order granting Randle’s petition for removal from the sex
offender registry. See State v. Randle, 331 Ga. App. 1 (769 SE2d 724) (2015).
In 1993, Randle pled guilty under North Carolina v. Alford1 to one count
of child molestation stemming from an incident in which he touched the penis
of a ten-year-old boy. The trial court imposed an eight-year sentence, three to
be served in prison and the balance on probation. Randall completed his prison
sentence, registered as a sex offender in accordance with OCGA § 42-1-12, and
served out the remainder of his term on probation, from which he was released
in June 2001.
In 2013, Randle filed a petition for release from the sex offender registry
pursuant to OCGA § 42-1-19 (a) (4), which authorizes release where at least ten
years have elapsed since the offender has completed his sentence, see id. at (c)
(2) (A), and he can establish the fulfillment of six criteria set forth at OCGA §
17-10-6.2 (c) (1).2 Among these criteria is the requirement that “the victim did
not suffer any intentional physical harm during the commission of the offense.”
OCGA § 17-10-6.2 (c) (1) (D).3 Following a hearing, the trial court granted
1
400 U.S. 25 (91 SCt 160, 27 LE2d 162) (1970).
As discussed below, OCGA § 17-10-6.2 (c) (1) is a subsection of the sex
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offender sentencing statute.
3
The other five criteria are: (1) the offender has no prior convictions for sexual
offenses or obscenity in relation to minors; (2) the offense at issue did not involve the
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Randle’s petition, finding that Randle had met all the requirements for release
from the registry.
The State appealed, arguing that Randle’s act of touching the victim’s
genitals gave rise to a presumption that the victim had suffered “intentional
physical harm” that would preclude Randle’s removal from the sex offender
registry. In a split decision, the Court of Appeals affirmed, with the majority
concluding that the phrase “intentional physical harm” refers to “conduct that
goes beyond offensive and unwanted touching and involves the intentional
infliction of physical pain or injury upon the victim.” Randle, 331 Ga. App. at
5. The dissent, on the other hand, opined that intentional physical contact of any
type constitutes “intentional physical harm” that would preclude an offender’s
removal from the registry. Id. at 9-11 (Branch, J., dissenting.) We granted
certiorari, thus, to resolve the issue of whether “intentional physical harm” in
this context encompasses all intentional physical contact or only that which is
shown to have caused some physical pain or injury. Our review of this purely
use of a deadly weapon; (3) the court finds no evidence of a similar transaction; (4)
the offense did not involve the transportation of the victim; and (5) the victim was not
physically restrained during the commission of the offense. Id. at (c) (1) (A) - (C),
(E), (F).
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legal issue is de novo. See Luangkhot v. State, 292 Ga. 423 (736 SE2d 397)
(2013).
When we consider the meaning of a statute, we must presume
that the General Assembly meant what it said and said what it meant
. . . and so we must read the statutory text in its most natural and
reasonable way, as an ordinary speaker of the English language
would. The common and customary usages of the words are
important, but so is their context. For context, we may look to other
provisions of the same statute, the structure and history of the whole
statute, and the other law . . . that forms the legal background of the
statutory provision in question.
(Citations and punctuation omitted.) Zaldivar v. Prickett, 297 Ga. 589, 591 (1)
(2015).
At the crux of this dispute is the meaning of the word “harm.” As the
Court of Appeals majority noted, the common understanding of “harm,” as
reflected in leading English language dictionaries, involves “damage,” “injury,”
or “hurt.” See Randle, 331 Ga. App. at 5 (citing three well-known print
dictionaries); accord Merriam-Webster Dictionary, http://www.merriam-
webster.com/dictionary/harm (website last accessed Jan. 14, 2016). In
comparison, the word “contact” is defined to mean “a state of touching” or “a
union or junction of surfaces.” See Merriam-Webster Dictionary,
http://www.merriam-webster.com/dictionary/contact (website last accessed Jan.
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14, 2016]); accord Cambridge Dictionaries Online,
http://dictionary.cambridge.org/us/dictionary/english/contact (website last
accessed Jan. 14, 2016) (“contact” defined as “the fact of two people or things
touching each other”). In common parlance, thus, the word “harm” indicates not
any contact but, rather, injurious contact. Also notable is the juxtaposition of
the word “suffer” immediately preceding the phrase “intentional physical harm,”
which further supports the connotation of physical pain or injury.
Looking beyond the words of the phrase in question, we note that among
the other five criteria specified in OCGA § 17-10-6.2 (c) (1) is the requirement
that “[t]he victim was not physically restrained during the commission of the
offense.” Id. at (c) (1) (F). If subsection (c) (1) (D) were construed broadly as
meaning physical contact of any form, subsection (c) (1) (F) would be rendered
largely superfluous, as physical restraint will almost always entail physical
contact. The canon of statutory construction requiring that courts “‘avoid a
construction that makes some language mere surplusage,’” Beneke v. Parker,
285 Ga. 733, 734 (684 SE2d 243) (2009), thus militates in favor of the narrower
construction of “intentional physical harm.”
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The notion of “intentional physical harm” as involving actual physical
injury also finds support in the context of the larger legislative scheme of which
OCGA § 17-10-6.2 (c) is a part. OCGA § 17-10-6.2, which prescribes
mandatory minimum sentences for sexual offenses, was enacted as part of the
2006 comprehensive overhaul of the Code’s provisions related to sexual
offenders. See Ga. L. 2006, p. 379, Act 571, § 21. Among the other facets of
this legislative package was a new sexual battery statute, which defines sexual
battery as the act of “intentionally mak[ing] physical contact” with another
person’s intimate body parts without his or her consent. Id. at 391, § 15
(enacting OCGA § 16-6-22.1). Clearly, then, at the time of this enactment the
General Assembly was capable of crafting language precisely targeting
intentional physical contact, and yet it chose not to in fashioning the language
of OCGA § 17-10-6.2 (c) (1) (D). The difference in phraseology utilized in
these contemporaneously enacted provisions reinforces the conclusion that the
legislature did not view “intentional physical harm” as coterminous with
intentional physical contact.4
The criteria under OCGA § 17-10-6.2 (c) (1), which govern deviations from
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mandatory minimum sentences, did not become relevant to release from the sex
offender registry until 2010, when the legislature further revised the statutory scheme
6
This construction of “intentional physical harm” also accords with
authority from elsewhere in the realm of our criminal law. In defining the
offense of simple battery, the legislature has long recognized a distinction
between “intentionally mak[ing] physical contact of an insulting or provoking
nature” and “intentionally caus[ing] physical harm.” See OCGA § 16-5-23 (a).
Though both acts constitute the offense of simple battery, the fact that they are
identified separately indicates the legislature’s view that they are not
interchangeable. In construing the simple battery statute, our State’s appellate
courts have also recognized this distinction. See Moore v. State, 283 Ga. 151,
154 (2) (656 SE2d 796) (2008) (distinguishing intentional “insulting or
provoking physical contact” from intentional “physical harm”); Hammonds v.
State, 263 Ga. App. 5, 7 (2) (587 SE2d 161) (2003) (distinguishing “a touching
that does not result in injury, but is nonetheless insulting or provoking” from “a
touching that goes beyond insult to the infliction of pain or physical injury”).
related to sex offenders. The 2010 legislation, inter alia, established the current
process for petitioning for release from the registry and, in so doing, expressly
adopted the criteria set forth at OCGA § 17-10-6.2 (c) (1). See Ga. L. 2010, p. 168,
Act 389, § 15 (enacting OCGA § 42-1-19). In adopting these criteria in toto and
without qualification, the legislature, we presume, intended that their meanings as
applied in the context of the 2006 legislation be equally applicable to the 2010
legislation.
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Thus, both the legislature and our courts have recognized generally, albeit in a
different context, that physical contact, even if uninvited or unwanted, does not
necessarily equate to physical harm. We find no reason to believe that the
legislature intended to disregard this distinction in the present context.
For the foregoing reasons, we hold that the phrase “intentional physical
harm,” as it is used in OCGA § 17-10-6.2 (c) (1) (D), means intentional physical
contact that causes actual physical damage, injury, or hurt to the victim. We
therefore affirm the judgment of the Court of Appeals.
Judgment affirmed. All the Justices concur.
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