Evans v. the State , 334 Ga. App. 104 ( 2015 )

SECOND DIVISION
ANDREWS, P.J.
MILLER AND BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 7, 2015
In the Court of Appeals of Georgia
A15A0860. EVANS v. THE STATE.
MILLER, Judge.
Following a bench trial, Douglas Evans was found guilty of one count of child
molestation (OCGA § 16-6-4 (a)) and one count of sexual exploitation of children
(OCGA § 16-12-100 (b)).1 In sentencing Evans, the trial court refused to deviate from
the mandatory minimum sentence for child molestation under OCGA § 17-10-6.2 (c)
(1) (C) because the trial court found that Evans’s conviction for sexual exploitation
of children was a “relevant similar transaction.” Evans appeals, contending that the
trial court erred in considering the sexual exploitation offense as a “relevant similar
transaction” because it was charged in the same indictment as the child molestation
count. For the reasons that follow, we affirm.
1
Evans was acquitted of another count of sexual exploitation of children.
The interpretation of OCGA § 17-10-6.2 (c) (1) (C) is a question of law, which
we review de novo. See Jenkins v. State, 284 Ga. 642, 645 (2) (670 SE2d 425)
(2008).
Although our decision is based on the language of the statute, the evidence
from Evans’s trial, when viewed in a light most favorable to the verdict,2 shows that
around 2005 or 2006, the then four- or five-year-old victim and her mother met Evans
at church, and they became friendly with him since he was involved with the church’s
youth group. The victim referred to Evans as “Moose.” Eventually, the victim began
to stay overnight at Evans’s house once a week.
At these overnight stays, Evans instructed the victim to take a bath. After
drying her off, Evans directed the victim to lie on his bed, whereupon he rubbed
lotion on the her bottom, back and legs. On one occasion, Evans attempted to rub
lotion on the victim’s vagina, but the victim smacked his hand away and told him,
“no.” Evans also kissed the victim on her head, lips, and bottom.
In 2009, when the victim was eight years old, she told her teacher that “Moose”
had kissed her and that he had rubbed lotion on her bottom and vagina. The teacher
reported the incident to the school counselor and the principal.
2
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
Following the victim’s disclosure, a police officer conducted a forensic
interview where the victim recounted what Evans had done and revealed that Evans
had also taken pictures of her. Police officers then obtained and executed a search
warrant to search electronic storage devices at Evans’s home. The police officers
uncovered electronic media containing images of young children involved in sexual
activities, including semi-nude photographs of the victim.
Following the presentation of evidence, the trial court found Evans guilty of
child molestation and sexual exploitation of children. At sentencing, Evans’s counsel
argued that the court should not impose a lengthy prison sentence. The trial court
found that it was not allowed to sentence Evans to less than five years to serve for the
child molestation conviction because his sexual exploitation of children conviction
was a “relevant similar transaction” that precluded a deviation under OCGA § 17-10-
6.2 (c) (1) (C). The trial court sentenced Evans to 20 with 5 years to serve on the child
molestation charge and 5 years to serve concurrently for the sexual exploitation
conviction.
On appeal, Evans contends that the trial court erred in finding that the sexual
exploitation of children conviction was a relevant similar transaction for purposes of
OCGA § 17-10-6.2 (c) (1) (C) because two charges joined for trial are not similar
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transactions as a matter of law and the legislature intended for “relevant similar
transactions” to be limited to independent, extrinsic acts separate from the tried
offenses. We disagree.
Under OCGA § 17-10-6.2, if a defendant is convicted of a sexual offense,
which includes the offenses of child molestation and sexual exploitation of children,
the trial court must impose a sentence that includes a minimum time to be served in
prison. See OCGA § 17-10-6.2 (a) (5),(10), & (b). The trial court is prohibited from
probating, suspending, staying, deferring, or withholding any of the mandatory term
of imprisonment stated for any of the specified offenses. OCGA § 17-10-6.2 (b). If
all of the criteria listed in OCGA § 17-10-6.2 (c) (1) have been met, the trial court has
the discretion to deviate from the mandatory minimum prison sentence. See OCGA
§ 17-10-6.2 (c) (1) (A) - (F); Hedden v. State, 288 Ga. 871, 874 (708 SE2d 287)
(2011). The pertinent factor in this case is that “[t]he court has not found evidence of
a relevant similar transaction.” OCGA § 17-10-6.2 (c) (1) (C). Thus, the possibility
of a reduced prison sentence is foreclosed if the trial court has “found evidence of a
relevant similar transaction.” Id.
The phrase “relevant similar transaction” is not defined by OCGA § 17-10-6.2.
4
However, “[i]n all interpretations of statutes, the courts shall look diligently for the
intention of the General Assembly, keeping in view at all times the old law, the evil,
and the remedy.” OCGA § 1-3-1 (a). In determining the Legislature’s intent, we must
first begin with the text of the statute. See Fair v. State, 288 Ga. 244, 252 (2) (702
SE2d 420) (2010). “[W]here the literal text of a statute is plain and does not lead to
absurd or impracticable consequences, we apply the statute as written without further
inquiry.”(Citation omitted.) Spivey v. State, 274 Ga. App. 834, 835 (1) (619 SE2d
346) (2005).
Here, although “relevant similar transaction” is undefined, the Legislature’s
intent is clear. The Legislature unambiguously considers the offenses of sexual
exploitation of children and child molestation to be relevant similar transactions
because they are both defined as “sexual offenses” for OCGA § 17-10-6.2 purposes.
Moreover, the Legislature enacted OCGA § 17-10-6.2 in 2006. See Ga. L.
2006, pp. 395-396, § 21. Long before the statute’s enactment, it was well established
that, at sentencing, the trial court could consider any evidence that was properly
admitted during the guilt-innocence phase of the trial. See Blake v. State, 273 Ga.
447, 450 (4) (542 SE2d 492) (2001); cf. Ingram v. State, 262 Ga. App. 304, 308 (4)
(c) (585 SE2d 211) (2003) (“[S]entencing courts are authorized to consider in
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aggravation any lawful evidence which tends to show the motive of the defendant, his
lack of remorse, his general moral character, and his predisposition to commit other
crime.”) (footnote omitted). Given the existing state of the law when the Legislature
enacted OCGA § 17-10-6.2, we presume that the Legislature would allow the trial
court, at sentencing, to consider all evidence introduced at the defendant’s trial,
including evidence of another indicted sexual offense, in determining whether there
was evidence of a relevant similar transaction. See Fair, supra, 288 Ga. 244 at 252
(2) (“[I]n interpreting a statute, we must presume that the General Assembly had full
knowledge of the existing state of the law and enacted the statute with reference to
it.”) (citation and punctuation omitted).
Evans cites to Algren v. State, 330 Ga. App. 1, 5-6 (2) (764 SE2d 611) (2014),
and OCGA § 24-4-404 to support his contention that the phrase “similar transaction”
has generally been understood to mean independent, extrinsic acts. Evans fails to
appreciate that the body of law he relies upon governs the admissibility and limited
purpose of evidence of similar transactions in the guilt-innocence phase, not evidence
used at the sentencing phase. Thus, while OCGA § 24-4-404 governs the general
admissibility of evidence of extrinsic acts, OCGA § 17-10-6.2 specifically governs
the sentencing of sexual offenses, and “[f]or purposes of statutory interpretation, a
6
specific statute will prevail over a general statute, absent any indication of a contrary
legislative intent.” (Citation omitted.) Vines v. State, 269 Ga. 438, 440 (499 SE2d
630) (1998).
Moreover,
[s]tatutes should be read according to the natural and most obvious
import of the language, without resorting to subtle and forced
constructions, for the purpose of either limiting or extending their
operation, and this principle is particularly compelling when interpreting
criminal statutes.
(Citation and punctuation omitted.) State v. Johnson, 269 Ga. 370, 371 (1) (499 SE2d
56) (1998). Accordingly, this Court must read OCGA § 17-10-6.2 in conjunction with
OCGA § 24-4-414 which provides that in a criminal proceeding in which the
defendant is accused of a child molestation offense, evidence of the defendant’s
commission of another offense of child molestation, the definition of which includes
the offense of sexual exploitation of children, shall be admissible and may be
considered for its bearing on any matter to which it is relevant. Given this language,
Evans forces a construction of OCGA § 17-10-6.2 that would lead to absurd
consequences. In this case, the trial court denied Evans’s motion to sever the child
molestation count from the two counts of sexual exploitation of children. Had the trial
court granted Evans’s motion, there would be no question that the evidence
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underlying his sexual exploitation of children would be admissible as a similar
transaction in the trial on the child molestation count. See OCGA § 24-4-414. Since
severance of the similar sexual offenses was not required,3 it seems implausible that
the Legislature would allow a defendant convicted of more than one sexual offense
to be eligible for a downward deviation from the mandatory minimum sentence
simply because the offenses were tried together, rather than severed from one another.
In light of the foregoing, we conclude that the phrase “relevant similar
transaction” under OCGA § 17-10-6.2 (c) (1) (C) includes a conviction for a sexual
offense charged within the same indictment as the offense for which a deviation from
the mandatory minimum sentence is considered. Accordingly, we affirm the trial
court’s judgment.
Judgment affirmed. Andrews, P. J., and Branch, J., concur.
3
See Stewart v. State, 277 Ga. 138, 140 (587 SE2d 602) (2003) (“[S]everance
is not mandatory when evidence of one offense is admissible upon the trial of another
offense”) (citation and emphasis omitted); Dickerson v. State, 304 Ga. App. 762, 764-
765 (1) (697 SE2d 874) (2010) (where trial court found that sexual exploitation
charge would have been admissible as similar transaction evidence to the child
molestation charge, trial court did not err in refusing to sever charges).
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