The State v. Crossen, 328 Ga. App. 198

Background

Defendant Stephen Crossen pled guilty to multiple counts: six counts of sexual exploitation of a child, one count of sodomy, six counts of misdemeanor dissemination of pornography to a minor, and one count of interference with custody; offenses involved consensual sexual contact and exchange of explicit images with a 16‑year‑old.
At the first sentencing hearing the trial court believed OCGA § 17‑10‑6.2 required imposition of the statutory mandatory minimums and imposed those sentences (seven years with five to serve on the exploitation and sodomy counts, concurrent lesser terms on other counts).
The court later concluded it had misinterpreted the statute, reopened sentencing, and determined it had discretion under OCGA § 17‑10‑6.2(c)(1) to deviate downward on all counts except sodomy.
At the second hearing the State presented no evidence contesting eligibility for downward deviation; the court relied on plea hearing testimony, the PSI, and sentencing testimony to find the statutory permitting factors (no prior sexual convictions, no weapon, no similar transaction, no intentional physical harm, no transportation, no physical restraint) were absent except that transportation occurred as to the sodomy count.
The trial court resentenced Crossen with downward departures on the exploitation counts (to five years with two to serve) and explained it was not imposing the burden on the defendant to prove entitlement to deviation.
The State appealed, arguing the court erred because no evidence was presented proving the absence of the disqualifying statutory factors and that the defendant bore the burden of proving entitlement to deviation. The Court of Appeals affirmed.

Issues

Issue	State's Argument	Crossen's Argument	Held
Whether trial court erred by downwardly deviating from OCGA § 17‑10‑6.2 mandatory minimums without evidence proving absence of statutory disqualifiers	No evidence was presented as to factors permitting deviation; thus deviation was improper	Trial court could consider evidence before it (plea, PSI, hearings) and deviate if it found disqualifying factors absent	Court affirmed: trial court may consider evidence presented and, having found statutory disqualifiers absent (except for sodomy count), did not abuse discretion
Who bears burden of proof on eligibility for downward deviation under OCGA § 17‑10‑6.2	State argued defendant must prove entitlement to deviation	Crossen and trial court argued statute is ambiguous and must be construed in favor of defendant; State presumed to bear burden to show mandatory minimum applies	Court held the statute is ambiguous on burden; construing it in favor of defendant, trial court did not err in declining to place burden on Crossen
Whether transportation in one count bars deviation on all counts	State later argued (in supplemental brief) that counts are similar and transportation in one precludes deviation on others	Trial court found transportation only affected the sodomy count and did not bar deviation on other counts	Court declined to address new argument on appeal (issue not enumerated)
Whether trial court must solicit or produce evidence beyond evidence presented by parties to find factors absent	State implied court should have required proof	Crossen: court may rely on plea colloquy, PSI, testimony before it; court cannot force parties to produce evidence	Court held statute does not require the trial court to procure evidence not tendered; reliance on the record was permissible

Key Cases Cited

Gee v. State, 225 Ga. 669 (penal statutes construed strictly against the State and in favor of liberty)
Goldberg v. State, 282 Ga. 542 (statutory language interpreted in light of legislative intent and the statute as a whole)
Chase v. State, 285 Ga. 693 (construe statutes with reference to existing law and decisions)
State v. Johnson, 269 Ga. 370 (criminal statutes should not be limited or extended by subtle or forced interpretations)
Hedden v. State, 288 Ga. 871 (trial court prohibited from probating or withholding mandatory term absent statutory allowance)
Johnson v. State, 126 Ga. App. 757 (trial court considers criminal record and all aspects of the crime at sentencing)
Watts v. State, 261 Ga. App. 230 (trial court is not required to procure evidence not tendered by parties)
Carr v. State, 267 Ga. 547 (court may downward deviate when statutory factors are absent)
State v. Langlands, 276 Ga. 721 (ambiguity in statute exists where language is unclear)
State v. Mills, 268 Ga. 873 (ambiguities in criminal statutes are construed in favor of the defendant)
Manley v. State, 287 Ga. App. 358 (party cannot broaden enumerated errors via argument in brief)
Campbell v. State, 253 Ga. App. 325 (supplemental briefing cannot expand issues beyond enumeration)
Fulton County v. Bartenfeld, 257 Ga. 766 (appellate court cannot consider issues not raised by a party)