DIXON v. THE STATE.
S04A0072
SUPREME COURT OF GEORGIA
MAY 3, 2004
RECONSIDERATION DENIED JUNE 4, 2004.
596 SE2d 147
FLETCHER, Chief Justice.
A Floyd County jury convicted Marcus Dwayne Dixon of misdemeanor statutory rape and aggravated child molestation, but acquitted him of rape, false imprisonment, aggravated assault, and sexual battery.1 Dixon appeals only his conviction for aggravated child molestation. Because we find that the General Assembly intended to punish Dixon‘s conduct as misdemeanor statutory rape rather than child molestation, we reverse Dixon‘s conviction for aggravated child molestation.
The State alleged that on February 10, 2003, Dixon forcibly raped the victim after school in a trailer on the campus of Pepperell High School. At the time, the victim was 15 years old, in 10th grade, and less than three years younger than Dixon, who was 18 years old and in 12th grade. The defense claimed that the sexual intercourse was consensual and that the victim fabricated the rape story to avoid trouble with her father. The victim sustained slight vaginal injuries, and there was also evidence of bruising on the victim‘s arms.
Although the jury acquitted Dixon of rape, this means only that the State failed to prove the element of force beyond a reasonable doubt, and not that the activity was wholly consensual.
1. The statutory rape and child molestation statutes are part of a legislative framework aimed at protecting children from sexual exploitation and abuse. As part of a coordinated scheme, relating to the same subject matter, these statutes must be construed together to determine how the legislature intended to treat the conduct that occurred in this case.2
Reading these statutes together shows a clear legislative intent to prosecute the conduct that the jury determined to have occurred in this case as misdemeanor statutory rape. A number of sound legal arguments support this position. First, in 1996 the legislature amended
(a) The legislature amended the statutory rape laws in 1995, and again in 1996, in order to “provide for different penalties depending on the age of the perpetrator.”4 In 1995, the legislature added the misdemeanor statutory rape provision,
It would be entirely incongruous with the intent of the legislature, when it eliminated the discretionary aspect of the statute and mandated that conduct meeting the misdemeanor statutory rape criteria be punished only as a misdemeanor, if the State retained the discretion to prosecute the exact same conduct as either misdemeanor statutory rape or felony child molestation. Instead, when the legislature removed the discretionary aspect of the misdemeanor statutory rape provision, it intended the misdemeanor provision to have exclusive application to conduct falling within its parameters.7 If the conduct at issue in this case also qualifies as child molestation, then the misdemeanor statutory rape provision would have no exclusive application, because any instance of sex between teenagers would also constitute child molestation.8 That result would completely undermine the legislature‘s intent to remove any discretion over whether to punish sexual intercourse between teenagers, other than forcible rape, as a misdemeanor or a felony.
(b) In addition, by enacting the non-discretionary misdemeanor statutory rape provision, the legislature spoke very directly towards specific conduct involving actors within a very narrow age range. As this Court stated in Vines v. State, “[f]or purposes of statutory interpretation, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.”9 This is a well-regarded principle of statutory construction in Georgia.10 The misdemeanor statutory rape provision, with its three-year age range, is far more specific and narrow than either the felony statutory rape statute or the felony child molestation statute, and evidences a clear intent by the legislature to treat that very narrow conduct as a misdemeanor. The legislature enacted a very specific statute and deemed conduct falling within that statute to constitute a misdemeanor, and it would undermine the intent of that statute if the exact
(c) Further, the misdemeanor statutory rape provision, adopted in 1996, is the most recent legislative judgment regarding the appropriate punishment for Dixon‘s conduct. This Court has held that “[t]he rule for construing statutes which may be in conflict is that the most recent legislative expression prevails.”11 Since the legislature most recently declared that sex between teenagers less than three years apart should be punished as misdemeanor statutory rape, and not felony child molestation, that judgment must prevail.
(d) Finally, due to the conflicting nature of the two statutes with respect to their prescribed punishments, the rule of lenity requires that Dixon only be sentenced for the misdemeanor. As this Court has explained, “[w]here any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered.”12 The rule derives from the “instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.”13 Here, the same conduct would result in the imposition of dramatically different penalties under the two statutes. The rule of lenity is particularly applicable where the two crimes at issue involve different grades of punishment, i.e., a misdemeanor and a felony.14
2. The State argues that the “aggravated” nature of this act renders it a different crime altogether from child molestation, so that the statutory construction arguments have no merit.15 The State ignores, however, that simple child molestation is a necessary element of aggravated child molestation, so that the State cannot reach aggravated child molestation without first proving that Dixon is guilty of simple child molestation.16 As discussed above, however,
3. We encourage the legislature to examine this case and make a more recognizable distinction between statutory rape, child molestation, and the other sexual crimes, and to clarify the sort of conduct that will qualify for the ten-year minimum sentence accompanying a conviction for aggravated child molestation. The conflicting nature of the statutory scheme relating to sexual conduct, especially with respect to teenagers, may lead to inconsistent results. Under the statutes as they are now written, it is entirely possible that teenagers could be convicted of aggravated child molestation, and receive the concomitant ten-year minimum sentence, if they willingly engage in sexual activity, but stop short of the actual act of sexual intercourse, so long as one experienced slight pain or received even minor injuries incidental to the act.
4. In light of the determination that the legislature intended conduct qualifying as misdemeanor statutory rape not to be charged as felony child molestation, we need not address Dixon‘s contention that his sentence is unconstitutionally cruel and unusual,17 nor any other remaining arguments.
Dixon‘s conviction for aggravated child molestation is hereby reversed.
Judgment reversed. All the Justices concur, except Carley, Thompson and Hines, JJ., who dissent.
HUNSTEIN, Justice, concurring.
I agree with the majority that in light of the interplay between
Accordingly, I concur fully in the majority opinion reversing the defendant‘s felony conviction because this Court must follow the statutory interpretation that favors the criminal defendant. I write to join the majority‘s exhortation to the Legislature urging it in the strongest possible terms to clarify this area of the law so that misdemeanor punishment is accorded teenagers within the intended age range who engage in consensual sexual activity and felony punishment is accorded only to those teenage sexual predators who prey upon other children.
CARLEY, Justice, dissenting.
I agree completely with all that is said in the well-reasoned and compelling dissent of Justice Hines. As he concludes, the majority “has clouded the law and chosen to construct a result different from that mandated by the duly enacted statutes, and from the jury‘s verdicts.” Dissent of Justice Hines, p. 16. I write separately only to express some additional observations as to why Justice Hines’ analysis is clearly correct and why the judgment of conviction and sentence should be affirmed.
After reading the majority opinion, one is left with the impression that Dixon is the only real victim in this case, and that the true culprit is the “conflicting nature of the statutory scheme relating to sexual conduct, especially with respect to teenagers. . . .” Majority opinion, p. 8. To the contrary, however, the statutory scheme is clear and unambiguous. The charges against Dixon are not conflicting, but relate to his criminal acts which are overlapping, rather than identical. Statutory rape involves only his sexual conduct, whereas aggravated child molestation involves his conduct that is both sexual and injurious to the victim.
The majority concedes, as it must, that Dixon‘s acquittal on the forcible rape charge does not prove that the sexual act that he is charged with committing was wholly consensual. It also recognizes that, as a result of the sexual encounter, the 15-year-old girl suffered vaginal injuries and bruising. Nevertheless, the majority summarily dismisses her injuries as “slight,” thereby eliminating the girl‘s status as the victim of aggravated child molestation. Majority opinion, p. 4. However, the General Assembly has not quantified the
In her separate concurrence, Justice Hunstein acknowledges that the General Assembly “did intend to impose felony punishment upon sexual predators regardless of the age of the offender, so as to include teenage sexual predators within its ambit.” Concurrence of Justice Hunstein, p. 8. I not only completely agree with that statement, but I also firmly believe that this case clearly falls within the “ambit” contemplated by that cogent observation. Here, the 15-year-old victim testified that Dixon engaged in an act of non-consensual sexual intercourse with her and that she was injured by that conduct. The jury also heard from two other young girls, one of whom testified that Dixon exposed himself to her, whereas the other recounted that he placed his hands inside her underwear and touched her genital area. The trial court admitted this evidence of Dixon‘s commission of other similar acts for the limited purpose of illustrating his intent, motive or bent of mind in engaging in the act of intercourse with the 15 year old. I submit that, having heard all of the relevant and probative evidence, the jury was authorized to find that Dixon was a “teenage sexual predator[ ] who prey[s] upon other children.” Concurrence of Justice Hunstein, p. 9. However, whether the jury did or did not so find is not material to our appellate review. We must affirm the judgment entered on the jury‘s verdict finding Dixon guilty of aggravated child molestation if the evidence was sufficient to establish that Dixon molested the victim and that she was injured thereby. The evidence was clearly sufficient to support that finding.
The majority appears to have lost sight of the fact that the young female upon whom Dixon committed an “immoral or indecent act” which physically injured her is the actual victim in this case. He was prosecuted only because she chose to press charges and to testify against him at trial. Whether she was a willing partner and whether she suffered physical injury as a result of Dixon‘s act were credibility issues for the trier of fact. Having heard from her and from the other witness for the prosecution and the defense, the jury found that Dixon committed the alleged act of child molestation and that she was injured as a result of his conduct. If the jury had not believed her, then it would have convicted him only of statutory rape. Since we have juries to determine the credibility of young girls who claim to be victims of aggravated child molestation, I cannot subscribe to the majority‘s wholesale rejection of the applicability of that crime to teenage males whose sexual acts result in the infliction of only “slight” injuries.
The rule of lenity likewise simply does not apply in this case, since a greater sentence is clearly authorized when the crime involves an injury to the victim. Under the majority‘s interpretation of that rule, however, the harm done to the victim is irrelevant to the defendant‘s criminal liability. That construction is antithetical to the framework of Georgia‘s criminal law. To give but one of many possible examples, if Dixon can injure a 15-year-old girl by engaging in non-consensual intercourse with her and, under the rule of lenity, evade prosecution for aggravated child molestation, then one whose reckless driving kills another cannot be found guilty of the felony of vehicular homicide, because the rule of lenity limits his culpability to misdemeanor punishment under
According to the majority, the “elementary rules of statutory construction show that the legislature intended for Dixon‘s conduct to be prosecuted as misdemeanor statutory rape rather than felony child molestation, whether simple or aggravated.” Majority opinion, p. 8. I submit that the General Assembly does not have such disregard for the welfare of this state‘s children as to permit a teenage sexual predator who injures a young female during an act of non-consensual intercourse to escape punishment for the felony of aggravated child molestation. In my opinion, the explanation for today‘s opinion is not a statutory conflict attributable to the General Assembly, but the majority‘s own subjective belief that the girl was a willing
I am authorized to state that Justice Thompson joins in this dissent.
HINES, Justice, dissenting.
Because the majority errs in several ways, I respectfully dissent. It assumes that it can intuitively discover “the conduct that the jury determined to have occurred in this case,” majority op., p. 5; it ignores the clear legislative framework in which the General Assembly defines the separate and distinct crimes of statutory rape and aggravated child molestation; and it confuses the relationships regarding merger of crimes and lesser included offenses.
This Court cannot determine what the jury concluded about the facts of this case. It can only determine whether there was sufficient evidence for the jury to find that Dixon‘s conduct constituted the crimes of statutory rape and aggravated child molestation, see Hines v. State, 276 Ga. 491, 492 (2) (578 SE2d 868) (2003), and there was. Verdicts of acquittal on any of the other counts in the indictment do not necessarily show that the State failed to prove those charges, but “may reflect a compromise or lenity by the jury.” Id.
The majority approaches this case as though the crimes of statutory rape and aggravated child molestation are one and the same. But they are not. The General Assembly has defined aggravated child molestation as follows:
(a) A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.
. . .
(c) A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.
Thus, for an act to be considered statutory rape, the State must prove only that the defendant engaged in sexual intercourse with a person under the age of 16, outside of marriage. The age of the perpetrator is irrelevant to the commission of the crime; it is relevant only as to punishment.19 By contrast, for the crime of aggravated child molestation to be committed, sexual intercourse need not occur, although it may. But that is not the end of the analysis. To prove this crime, the State must establish not only that the victim was under the age of 16, but that the act involved was indecent or immoral, that arousal or satisfaction of the sexual desires of the defendant or the child was the intent of the act, and that, as alleged in this case, the child was physically injured by the act;20 none of these elements must be proved to establish the crime of statutory rape. To say that the General Assembly intended that statutory rape and aggravated child molestation are to be governed by
Nor is there any legislative history supporting the majority‘s analysis. The 1995 amendment, referred to by the majority, is part of the “Child Protection Act of 1995.” Ga. L. 1995, p. 957 et seq. As part of that Act, and at the same time the General Assembly was providing for misdemeanor punishment in certain statutory rape cases, it raised the age of a “child” for purposes of child molestation offenses from 14 to 16. See Ga. L. 1995, pp. 957-958, §§ 3, 4. The preamble to the Act states that its purpose is to increase the minimum punishment for aggravated child molestation, and to “increase the penalties for sexual exploitation of children.” Clearly, had the General Assembly wished to embrace the measure of punishment set forth in the majority opinion, it would have done so. But it did not; it continued statutory rape and aggravated child molestation as separate crimes, and did not reduce the punishment for aggravated child molestation based upon the ages of the victim and perpetrator. In 1996, the General Assembly made no change regarding the felony crime of aggravated child molestation, and the only change it made that was relevant to the crime of statutory rape did not affect the definition of that crime; it dealt only with punishment. See Ga. L. 1996, p. 1117, § 4. That the General Assembly removed a measure of the trial court‘s sentencing discretion did not alter the nature of the acts prohibited. There is nothing in either the 1995 or 1996 enactments that supports the conclusion that the General Assembly intended that aggravated child molestation and statutory rape be considered one crime.
The proper analysis is that, in this case, statutory rape is, as a matter of fact, a lesser included offense of aggravated child molestation. When one offense is “established by the same but less than all of the facts required to establish” another offense, the first merges into the second as a matter of fact. Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710) (1992). See
The majority does not specifically address the relationships between merger of crimes and lesser included offenses because it
As previously stated, the majority opinion does not address merger and lesser included offenses directly, but it does attempt to distance itself from their operation in Division 2, majority op., p. 7. There, the majority recognizes that “simple” child molestation is a “necessary element” of aggravated child molestation, and thus a lesser included crime of that greater offense. See Carter v. State, 269 Ga. 420, 423 (5) (499 SE2d 63) (1998). And while the majority reaches to equate statutory rape and “simple” child molestation, it ignores the necessary conclusion that, if these two crimes are one and the same, then the crime of statutory rape is a lesser included offense of aggravated child molestation, because it is aggravated child molestation that has additional elements, including harm to the victim.
The majority summarily dismisses the harm proved to have been suffered by the teenaged victim as “slight vaginal injuries.” In fact, the evidence showed these “slight vaginal injuries” to be a tearing of the hymen and the bruising of the vaginal orifice. But despite mischaracterizing these injuries, the majority‘s analysis does not depend upon their “slight” nature to relieve Dixon from punishment for his conviction of aggravated child molestation. Rather, the majority declares the injuries, which make the act of child molestation aggravated, to be irrelevant. The majority states that before the crime of child molestation can be considered aggravated, the defendant‘s act must first satisfy the statutory definition of child molestation, but the majority has declared that Dixon‘s act will only be considered to be statutory rape. Thus, regardless of whether the victim suffers the most horrific injuries, or only “slight” injuries, the majority has decided that if the defendant‘s act can also be described as statutory rape, that is the only crime for which he may be convicted
As the crimes of statutory rape and aggravated child molestation are not shown by the exact same facts in this case, the rule of lenity has no application. The majority cites Brown v. State, 276 Ga. 606, 608-609 (1) (b) (581 SE2d 35) (2003), in support of its application of the rule, but in doing so it does not discern the facts of that case, and therefore the circumstances whereby application of the rule is appropriate. In Brown, the evidence used to establish one crime was, without more, the same evidence used to establish the second crime. Thus, there was a complete factual merger of the two offenses. However, when, as here, the evidence needed to prove each crime differs, the crimes are separate and distinct, and the concept of lesser included offenses governs, not the rule of lenity.
The majority “encourages” the General Assembly to distinguish between statutory rape and aggravated child molestation, and to clarify what conduct is to be punished as aggravated child molestation. But the General Assembly has already done so. It is the majority which has clouded the law and chosen to construct a result different from that mandated by the duly enacted statutes, and from the jury‘s verdicts.
I am authorized to state that Justice Carley and Justice Thompson join in this dissent.
DECIDED MAY 3, 2004 — RECONSIDERATION DENIED JUNE 4, 2004.
Fred R. Simpson, McKenna, Long & Aldridge, David Balser, James D. Dantzler, Jr., James A. Washburn, Thomas B. Bosch, for appellant.
Leigh E. Patterson, District Attorney, John F. McClellan, Jr., Assistant District Attorney, for appellee.
Brenda J. Bernstein, Nicholas A. Lotito, Covington & Burling, Michael E. Paulhus, William D. Iverson, Claire G. Kunstling, amici curiae.
Notes
A person convicted of the offense of statutory rape shall be punished by imprisonment for not less than one nor more than 20 years; provided, however, that if the person so convicted is 21 years of age or older, such person shall be punished by imprisonment for not less than ten nor more than 20 years; provided, further, that if the victim is 14 or 15 years of age and the person so convicted is no more than three years older than the victim, such person shall be guilty of a misdemeanor.