Hudson v. State
309 Ga. App. 580
Ga. Ct. App.2011Background
- Hudson was convicted by jury of aggravated sexual battery and child molestation involving J.L., a ten-year-old girl, while living at his great-grandparents' home.
- J.L. disclosed abuse after viewing a school video on abuse and telling a school counselor and her father that Hudson had touched her repeatedly.
- Trial evidence included Hudson taking J.L. to his bedroom, undressing her, and placing fingers in her vagina; prior molestation conviction involving his daughter was introduced.
- Hudson also had a prior conviction for child molestation of his seven-year-old daughter.
- Sentences: life imprisonment on aggravated sexual battery (25 years to serve with remainder probate) and 30-year sentence on child molestation (10 years to serve, remainder probated).
- Appeal challenged whether the two counts should merge for sentencing and, separately, the legality of the life sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Should aggravated sexual battery merge with child molestation for sentencing? | Hudson contends counts merge because same act supports both offenses. | State argues counts remain distinct facts or occasions permitting separate sentences. | Counts must merge; sentences vacated and remanded for resentencing. |
Key Cases Cited
- Drinkard v. Walker, 281 Ga. 211 (2006) (adopted Blockburger 'required evidence' test for whether two offenses can be separate)
- Dickerson v. State, 304 Ga.App. 762 (2010) (merger of touching and penetration in similar offenses)
- Gunn v. State, 300 Ga.App. 229 (2009) (merger of sexual battery by touching with child molestation by touching)
- Davenport v. State, 277 Ga.App. 758 (2006) (merger when penetration and touching evidence overlap)
- Shamsuddeen v. State, 255 Ga.App. 326 (2002) (offenses merged where only evidence was touching in connection with penetration)
- Aaron v. State, 275 Ga.App. 269 (2005) (no merger where offenses based on distinct acts (penetration vs. rubbing) structurally different)
- Childers v. State, 257 Ga.App. 377 (2002) (no merger where separate facts supported each offense)
- Salley v. State, 199 Ga.App. 358 (1991) (distinct averments (different periods) permit multiple punishments)
- LaPan v. State, 167 Ga.App. 250 (1983) (where dates are not essential elements, only one sentence may be imposed)