STRICKLAND v. the STATE. , 347 Ga. App. 216 ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, 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
August 27, 2018
In the Court of Appeals of Georgia
A18A1266. STRICKLAND v. THE STATE.
RAY, Judge.
In 2017, Lamar Lewis Strickland petitioned for release from the requirement
that he be registered as a sex offender as a result of a 1992 conviction for aggravated
child molestation. In opposing the petition, the State argued, inter alia, that Strickland
failed to meet one of the statutory requirements of eligibility for release, specifically,
that “[t]he victim did not suffer any intentional physical harm during the commission
of the offense[.]” OCGA § 17-10-6.2 (c) (1) (D); OCGA § 42-1-19 (a) (4). The trial
court denied the petition based on the finding that Strickland had pled guilty to
committing an act of aggravated child molestation which specifically involved
physical injury to the victim. Strickland sought discretionary review of the trial
court’s ruling, seeking a determination as to whether the phrase “intentional physical
harm” as used in OCGA § 17-10-6.2 (c) (1) (D) means a specific intent to cause
physical harm as opposed to an intent to commit the act that causes the physical harm.
We granted Strickland’s application for discretionary appeal to address this issue and,
for the reasons that follow, we affirm the ruling of the trial court.
A trial court’s decision whether to grant or deny a petition for release from the
sex offender registration requirements is reviewed on appeal for an abuse of
discretion. See Miller v. State, 291 Ga. App. 478, 479 (1) (662 SE2d 261) (2008).
However, the interpretation of a statute is a question of law, which we review de
novo. Mays v. State, 345 Ga. App. 562, 563 (814 SE2d 418) (2018).
The record indicates that on September 18, 1992, Strickland entered a guilty
plea to a charge of aggravated child molestation . The relevant portion of this charge
provided that on or about June 15 or June 16, 1992, Strickland performed “an
immoral and indecent act, to wit: placed his finger inside the rectum of [A. M.], a
child under the age of 14 years, with the intent to satisfy the sexual desires of the
accused, and which resulted in physical injury to said child.” (Emphasis supplied.)
.
In order to be released from the requirement that he be registered as a sex
offender, Strickland must show that he has completed all aspects of the sentence
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imposed for the offense which required registration, OCGA § 42-1-19 (a) (4), and that
he meets all six of the criteria set out in OCGA § 17-10-6.2 (c) (1) (A) through (F).
Among these criteria is that “[t]he victim did not suffer any intentional physical harm
during the commission of the offense.” OCGA § 17-10-6.2 (c) (1) (D).1 In denying
Strickland’s petition, the trial court concluded that Strickland did not satisfy this
specific requirement because he was convicted for an act of aggravated child
molestation which involved physical injury to the victim. This discretionary appeal
ensued.
In his sole enumeration of error, Strickland contends that the trial court
misconstrued the provisions of OCGA § 17-10-6.2 (c) (1) (D) in denying his petition.
Relying primarily on State v. Randle, 331 Ga. App. 1 (769 SE2d 724) (2015)
(physical precedent only) (hereainafter “Randle I”), Strickland argues that under
OCGA § 17-10-6.2 (c) (1) (D) the phrase “intentional physical harm” means an actual
1
We note that OCGA § 42-1-19 (a) provides four alternative grounds
authorizing release from registration as a sex offender. The criteria addressed in this
opinion and set forth in OCGA § 17-10-6.2 (c) (1) (D) – that the victim did not suffer
any intentional physical harm – applies only to the two grounds for release set forth
in subparagraphs (2) and (4) of OCGA § 42-1-19 (a), and it does not apply to the
grounds for release set forth in subparagraphs (1) and (3) of that code section.
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intent to cause the physical harm, rather than the intent to commit the act that causes
the physical harm. However, Strickland’s reliance on Randle I is misplaced.
In Randle I, the petitioner had been previously convicted on one count of child
molestation for placing his hands on the genitals of the victim. After serving his
sentence, the trial court granted his petition for release from the sex offender
registration requirements. The State appealed, contending that because the
petitioner’s underlying sexual offense involved physical contact with the genitals of
the victim, it created a presumption that the victim suffered “intentional physical
harm” which precluded him from being released from the registration requirements.
Randle I, supra at 1-2. We disagreed, holding that the term “intentional physical
harm” as used in OCGA § 17-10-6.2 (c) (1) (D) refers to conduct by the defendant
which results in the infliction of physical pain or injury upon the victim. Id. at 8 (1).
In so holding, we concluded that the State’s evidence that the petitioner’s underlying
sexual offense merely involved offensive or unwanted touching of the victim did not,
standing alone, create a presumption of “intentional physical harm” under OCGA §
17-10-6.2 (c) (1) (D). Id.
In State v. Randle, 298 Ga. 375 (781 SE2d 781) (2016) (hereinafter “Randle
II”), our Supreme Court granted certiorari to resolve the issue raised in Randle I as
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to whether the phrase “intentional physical harm” encompasses all intentional
physical contact or only that which is shown to have caused some physical pain or
injury. Randle II, supra at 376. Our Supreme Court affirmed our decision in Randle
I, holding that the phrase “intentional physical harm,” as 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.” (Emphasis supplied.) Id. at 378.
Following the interpretation of OCGA § 17-10-6.2 (c) (1) (D) set forth by our
Supreme Court in Randle II, we conclude that the phrase “intentional physical harm”
as used in the statute means a specific intent to commit the act that causes the
physical damage, injury, or hurt to the victim. As the record shows that Strickland
was convicted for an intentional act of aggravated child molestation which resulted
in physical injury to the victim, the trial court did not err in denying his request to be
released from the sex offender registration requirements.
Judgment affirmed. McFadden, P. J., and Rickman, J., concur.
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