Lead Opinion
On Junе 12, 2008, Mitchell Lee Adams was indicted for child molestation and aggravated child molestation occurring on and between May 1, 2007 and March 10, 2008, “the State being unable to narrow the range of dates or charge a specific date as the crime occurred during the period of time charged and the victim is a young child unable to state a specific date ....” Prior to trial, the trial court denied a challenge by Adams to the constitutionality of the mandatory minimum sentence for aggravated child molestation provided in the 2006 amendment to OCGA § 16-6-4 (d) (1) as applied to him. During a jury trial, Adams moved for a directed verdict, arguing that the State failed to prove that the crimes occurred during the period of time set forth in the indictment. The trial court ruled that the dates alleged in the indictment were not essential averments, and subsequently instructed the jury that any of the charged offenses could be proven as of any time within the applicable seven-year
Adams was found guilty of both offenses with which he was charged. Several months later, the trial court entered judgments of conviction on the guilty verdicts and sentenced Adams to life imprisonment for aggravated child molestation, with 25 years to be served and the remainder of the life sentence on probation, and to a 20-year term for child molestation, with five years to be served and the remainder on probation. Adams appealed to the Court of Appeals. Because the constitutionality of the current version of OCGA § 16-6-4 (d) (1) is raised on appeal and has not yet been considered by this Court, the Court of Appeals transferred the case to this Court pursuant to our exclusive jurisdiction over “all cases in which the constitutionality of a law . . . has been drawn in question ____” See Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1).
1. On the day that Adams was sentenced, he filed a motion to dismiss the indictment or, in the alternative, for directed verdict, which the trial court orally denied. In that motion, he asserted for the first time that, as a result of the trial court’s ruling that the alleged dates were not essential averments, the indictment permitted prosecution for offenses occurring prior to his thirteenth birthday on August 4, 2005, and that the State failed to prove that the crimes did not occur before that date. Adams contends on appeal that the time period for which he was convicted includes a period in which, because of his age, he could not be found criminally responsible.
“A person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime.” OCGA § 16-3-1. Under prior law, a person under the age of ten years was incapable of committing any criminal offense. Ford v. State,
OCGA § 16-3-1 “does not provide that a person under 13 years of age is incapable of performing an act which is designated a crime under the laws of Georgia . . . .” (Emphasis in original.) K. M. S. v. State of Ga.,
Indeed, OCGA § 16-3-1 sets forth an affirmative defense, because such a defense admits the doing of the act charged, but seeks to justify, excuse, or mitigate it. Chandle v. State,
“ ‘The responsibility of producing evidence of an affirmative defense and the burden of persuasion by proof beyond a reasonable doubt are two distinct and separate concepts. The first is placed squarely on the defendant unless the state’s evidence raised the issue.’ (Cits.)” [Cits.]
Cheesman v. State,
Adams could perhaps have moved for a new trial based upon newly discovered evidence. See Ford v. State, supra at 64; Broadnax v. State, supra. But see Clemmons v. State,
Neither an allegation nor proof of Adams’ аge was necessary to show his capacity for committing the crimes charged. Clardy v. State,
2. Adams further contends that the trial court erred in denying the motion for directed verdict which defense counsel made during trial on the ground that thе State failed to prove that the offenses occurred within the dates alleged in the indictment.
Where, as here, the State alleges a certain range of dates in an indictment and does not specifically allege that those dates are material, the State is not restricted at trial to proving that the crimes occurred within that range of dates. State v. Layman,
“offered no alibi evidence, nor did he at any time request a continuance on the ground of surprise, nor did he otherwise express a need for additional time to rebut any evidence presented by the state. Consequently, it does not appear that the failure to allege the specific date of the offense in the indictment materially affected his ability to present a defense....” [Cit.]
Hutton v. State,
The victim was unable to give specific dates, but approximate dates can be determined based on the evidence the state did present. The dates proved at trial were prior to the return of the indictment and were within the applicable seven-year statute of limitation period. Accordingly, the evidence was sufficient to support the allegations of the indictment. [Cit.] The trial court did not err in denying [Adams’] motion for a directed verdict of acquittal based on the state’s аlleged failure to prove when the offenses were committed.
Wilt v. State,
3. Prior to trial, Adams filed a motion to transfer the case to juvenile court pursuant to OCGA § 15-11-28 (b) (2) (B). In pertinent part, that statutory subsection provides the following:
After indictment, the superior court may after investigation and for extraordinary cause transfer any case involving a child 13 to 17 years of age alleged to have committed any offense enumerated in subparagraph (A) of this paragraph which is not punishablе by loss of life, imprisonment for life without possibility of parole, or confinement for life in a penal institution.
Although aggravated child molestation is an offense enumerated in subparagraph (A), the applicable sentencing statute was amended, effective July 1, 2006, so as to provide for mandatory punishment “by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life ...OCGA § 16-6-4 (d) (1).
Adams enumerates this ruling as error on appeal, arguing that, because of the seven-year statute of limitations and the trial court’s rulings and instructions, the offense of aggravated child molestation could have occurred prior to July 1, 2006, when that offense was not yet punishablе by life imprisonment and instead was to “be punished by imprisonment for not less than ten nor more than 30 years.” Ga. L. 1997, pp. 1578, 1579, § 1 (former OCGA § 16-6-4 (d) (1)). Indeed, aggravated child molestation clearly was a transferable offense under OCGA § 15-11-28 (b) (2) (B) prior to the 2006 amendment of OCGA § 16-6-4 (d) (1). State v. Ware,
the superior court is not divested of jurisdiction merely because some, but not all, evidence of criminal acts is beyond the scope of the superior court’s jurisdiction, so long as that evidence stems from the same criminal transaction which vests the superior court with jurisdiction. [Cit.]
Reynolds v. State,
4. Adams contends that the sentence provided in the amendment to OCGA § 16-6-4 (d) (1) constitutes cruel and unusual punishment as applied to him. As a result of OCGA § 17-10-6.1 (b), that sentence is 25 years, “followed by life on probation, with no possibility of probation or parole for the minimum prison time of 25 years. [Cits.]” Humphrey v. Wilson,
Both parties address precedent involving the punishment of a juvenile by life imprisonment without parole. During the pendency of this appeal, the Supreme Court of the United States held that the
Where, as here, no categorical Eighth Amendment restriction applies, we must in the following manner
determin[e] whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime. A court must begin by comparing the gravity of the offense and the severity of the sentence. [Cit.] “(I)n the rare case in which (this) threshold comparison . .. leads to an inference of gross disproportionality” the court should then compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.
Graham v. Florida, supra at _ (II). We have “emphasize[d] that it is the ‘rare case( )’ in which the threshold inference of gross disproportionality will be met and a rarer case still in which that threshold inference stands after further scrutiny. [Cit.]” Humphrey v. Wilson, supra at 532 (3) (g) (a rare case because of the legislative sea change in the punishment for consensual teenage oral sex).
“(A) sentence which is not otherwise cruel and unusual does not become so simply because it is ‘mandatory.’ (Cit.)” [Cit.] “Lеgislative enactments constitute the clearest and*702 most objective evidence of how contemporary society views a particular punishment. (Cit.) As a result, the issue of punishment is generally one for the legislative branch, and legislative discretion is deferred to unless the sentence imposed shocks the conscience. (Cit.)”
Widner v. State,
The aggravated child molestation committed by Adams “was not a passive felony. [Cit.]” Bragg v. State,
“Juveniles have been tried as adults and sentenced to long periods of incarceration in Georgia. [Cits.] Nor is the legislative decision to impose adult sanctions on youthful offenders peculiar to Georgia. [Cits.]” Johnson v. State,
5. The videotaped statement of the victim was admitted pursuant to the child hearsay statute found in OCGA § 24-3-16. Adams asserts that the statement was not properly admitted, because the trial court failed to make the findings of reliability required by that statute. However, the trial court actually did make a finding that there were sufficient indicia of reliability. Moreover, an express finding in that regard is not necessary, as the statutory requirement is met where, as here, “ ‘after both parties have rested, the record contains evidence which would support such a finding.’ [Cit.]” Romani v. State,
Adams alsо claims that admission of the videotaped statement violated the Confrontation Clause under Crawford v. Washington,
Judgments affirmed.
Concurrence Opinion
concurring specially.
I write specially because I disagree with the majority’s holding in Division 1 that acсuseds who were under the age of 13 when their alleged crimes were committed must raise their age as an “affirmative defense” in order to obtain the protection accorded such children by OCGA § 16-3-1. Pursuant to that statute, “[a] person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime.” This statute preserved the language in former Ga. Code Ann. § 26-302 and “is intended to have the samе effect. That is, one under the prescribed age is not to be prosecuted as a criminal, although he may be dealt with as the law provides for juveniles who violate the law.” Committee Notes to § 26-701 of the 1968 Criminal Code. I would recognize that the Legislature with the enactment of this statutory language has determined that no child under the age of 13 who commits a criminal offense may be accused of, i.e., “considered,” or found guilty of committing that crime. Once the date of birth is established so as to place a child within the ambit of OCGA § 16-3-1, allowing that child to “waive” that legal bar would utterly thwart the Legislature’s purpose of protecting such a child from ever being considered or found guilty of a crime.
OCGA § 16-3-1 by its plain language establishes that children who commit criminal offenses at the time they are under the age of 13 are categorically ineligible to be prosecuted for or convicted of those offenses. The statute thus operates in the same manner as thе United States Supreme Court’s holding in Roper v. Simmons,
In this case, appellant’s indictment charged him with committing child molestation and aggravated child molestation occurring on and between May 1, 2007 and March 20, 2008. However, because the State did not specifically allege that those dates were material, appellant was subject to being prosecuted and found guilty of the charged crimes within the applicable seven-year statute of limitation. The record in this case establishes that appellant was born on August 4,1992,
I concur in the majority’s holding not because it is correct regarding the legal application of OCGA § 16-3-1 to this case but because my review of the evidence adduced at trial establishes that there is no рossibility the jury convicted appellant of the charged offenses based upon any acts committed when appellant was under the age of 13. The victim’s mother testified at trial that the victim first related information to her about the molestation on March 9, 2008. Although the State curiously failed to introduce any evidence regarding the victim’s precise age,
mately two years old.
Accordingly, I concur for evidentiary reasons only in the majority’s holding. I also take the opportunity to caution prosecutors that where, as here, the potential exists that an accused was under the age of 13 within the statute of limitation applicable to the commission of a charged criminal offense, the indictment should be drafted carefully to avoid any possibility of the jury considering or finding the accused guilty before he or she has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime. OCGA § 16-3-1.
I am authorized to state that Justice Melton joins in this special concurrence.
Notes
By logical extension, the majority’s rationale also presents the potential of authorizing the Stаte in violation of Roper, supra, to use the child’s “waiver” as the reason to execute a child under the age of 18 at the time he committed a capital offense.
A review of the record in this case — from the affidavit submitted to the magistrate court to obtain the arrest warrant to the superior court’s production orders to the youth detention center to release appellant for trial — is replete with notations identifying appellant by his birth date. I thus disagree with the majоrity that any fact question exists in this case regarding when appellant was horn. There is no issue whether the State put the incorrect date of birth on appellant’s arrest warrant or whether the inmate production orders to the youth detention center identified a different “Mitchell Adams” with the “DOB: 08/04/1992.”
The prosecutor in opening stated that the victim was four years old “[w]hen this happened” but was “currently five” at the time of the January 2009 trial.
This assumes that the victim was just shy of her fifth birthday at the time of the forensic interview.
The victim complained on March 9, 2008 about experiencing pain when the mother sought to bathe her.