PHAGAN v. THE STATE
S97A0161
Supreme Court of Georgia
JULY 16, 1997
RECONSIDERATION DENIED JULY 30, 1997
268 Ga. 272 | 486 SE2d 876
BENHAM, Chief Justice
4. Lastly, we address Quick-Trip‘s contention that the assignee lessors are liable to Quick-Trip for the negligent release of funds to Itex. Despite having an “Acknowledgement and Acceptance of Equipment by Lessee” which authorized the assignee/lessors to pay the equipment supplier, the assignee/lessors withheld payment from the supplier due to the business lessee‘s verbal notification, in response to inquiries made by the assignee/lessors, that the equipment was defective. According to the assignee/lessors, the funds were released to the supplier upon notification from the business lessee that the equipment problems had been resolved. The business lessee disputes the assignee/lessors’ version of the facts. As there appears to be a genuine issue of material fact concerning the claim that the assignee/lessors negligently released the funds to the equipment supplier, we agree with the Court of Appeals that summary judgment in favor of the assignee/lessors on the business lessee‘s claim was inappropriate.
Judgment affirmed in part and reversed in part. Fletcher, P. J., Sears, Hunstein, Carley, Thompson, JJ., and Judge Richard W. Story concur. Hines, J., disqualified.
DECIDED JUNE 2, 1997 —
RECONSIDERATION DENIED JULY 30, 1997.
Savell & Williams, Charles M. Dalziel, Jr., William E. Turnipseed, for appellant (case no. S96G1641).
Lamberth, Bonapfel, Cifelli & Stokes, Gary D. Stokes, Carter L. Stout, Stuart F. Clayton, Jr., for appellants (case no. S96G1642).
Rumsey & Ramsey, Austin L. Ramsey III, for appellees.
S97A0161. PHAGAN v. THE STATE.
(486 SE2d 876)
BENHAM, Chief Justice.
Delma Cecil Phagan was convicted of aggravated child molestation (
In January 1996, the grand jury returned a true bill on an indictment which charged appellant with two counts of statutory rape, i.e., engaging in sexual intercourse with a 15-year-old girl during the summer months of 1995. Effective July 1, 1995, it was illegal to have sex with a person under the age of 16 to whom the accused was not married.
1. Appellant contends that the 1995 amendments to the statutory rape and child molestation statutes which expanded the coverage of the statutes to minors under the age of 16 are unconstitutional when applied to him since he had lawfully engaged in consensual sexual activity with the minor before the effective date of the amendments, and was thereby entitled, under the auspices of the constitutional right of privacy, to continue the activity. In effect, appellant contends his participation in the conduct before July 1 afforded him “grandfathered” protection against an accusation of illegal conduct occurring after July 1. Under appellant‘s theory, a legislative proscription of certain conduct is not applicable to those persons who had previously engaged in the proscribed conduct prior to it being declared illegal.
While we would agree that the 1995 amendments could not be applied constitutionally to prosecute appellant for his pre-July 1 sexual relationship with the minor, the indictment makes it explicitly clear that appellant was prosecuted for his post-July 1 conduct. We cannot agree with appellant‘s suggestion that his right of privacy exempts him from the amendments’ coverage. Whatever privacy interest appellant invokes to protect, his consensual sexual activity with a 15-year-old female not his spouse does not offer a safe haven from the criminalization of the conduct. Within the General Assembly‘s constitutional empowerment to make all laws it deems necessary and proper for the welfare of the State so long as the law is con-
The State has a “compelling governmental interest [in] the welfare of the children.” In the Interest of J. C., 242 Ga. 737, 738 (251 SE2d 299) (1978). Its interest in “‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling‘” and beyond the need for elaboration.’ [Cit.]” Aman v. State, 261 Ga. 669 (1) (b) (409 SE2d 645) (1991). See also In the Interest of B. L. S., 264 Ga. 643, 649 (449 SE2d 823) (1994) (Sears, J., concurring in part and dissenting in part); Barnes v. State, 244 Ga. 302 (260 SE2d 40) (1979). See also Benton v. State, 265 Ga. 648 (2) (461 SE2d 202) (1995). The 1995 amendments raised the age which a minor must reach before being legally capable of consenting to sexual intercourse, and extended the statutory protection afforded children against exposure to immoral or indecent acts intended to arouse or satisfy sexual desires. In raising the age at which a minor may consent to sexual intercourse and under which a minor may not be subjected to immoral or indecent acts, the General Assembly acted to further the State‘s compelling interests in safeguarding young people. In light of the State‘s compelling interests in the welfare of its young citizens, the trial court properly upheld the age amendments against appellant‘s constitutional challenge.
2. Appellant also took aim at the constitutionality at
In examining a statutory sentencing scheme that provided varied punishment based on the perpetrator‘s age, the Supreme Court of Nevada held that the punishment differential was not violative of the Equal Protection Clause because “the legislature could reasonably decide that [persons] beyond a certain age should have sufficient maturity and judgment to be held responsible for conduct which might be excusable in a younger person.” See also State v. Drake, 219 NW2d 492, 496 (Iowa 1974), where the Supreme Court of Iowa upheld its statute against constitutional challenge. We find the rationale of these two courts persuasive and conclude that the General Assembly had a rational basis for enacting the amendment calling for disparate sentences based on the age of the perpetrator. Accordingly, the trial court did not err when it upheld the constitutionality of
3. We turn next to appellant‘s assertions that the evidence presented at trial was not sufficient to authorize a rational trier of fact to find appellant guilty of the charges beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). With regard to the two statutory rape convictions, there is no doubt that appellant and the minor engaged in sexual intercourse. However, in order to convict appellant of the charges, the State had to prove that the acts took place between July 1 and September 28, 1995. We examine the sufficiency of the evidence presented against appellant with that time frame in mind.
(a) The minor testified that she had sexual intercourse with appellant between five and ten times. At no time during her testimony was she able to provide a date on which she and the appellant engaged in sexual conduct. On direct examination, she testified that she had met appellant in June or July 1995, after school had recessed for the summer months, and that she had had sexual intercourse
On cross-examination, the minor said her first two sexual encounters with appellant took place before July 1, 1995, and she was unable to tell the jury whether she had been with appellant after July 1. She identified a greeting card found in appellant‘s home as one she had written on June 14, 1995, after several sexual encounters with appellant, and which she had delivered to him “one week or so later,” soon after which they saw each other for the last time. Despite the minor‘s contradictory testimony concerning the timing of her encounters with appellant, her testimony that she had intercourse with appellant on July 14 and two or three times thereafter while she was fifteen was sufficient evidence from which the jury could determine beyond a reasonable doubt that appellant engaged in sexual intercourse with the minor at least twice during the proscribed period.
(b) Appellant was also charged with having committed an act of aggravated child molestation against the minor during this time period. As with the statutory rape charges just discussed, the act alleged (placing his penis on and into the mouth of the minor) was an act of aggravated child molestation, insofar as this minor is concerned, only between July 1 and September 28, 1995. While the minor responded affirmatively on direct examination when asked if “oral sex” had been performed the evening before her July 15 hospital visit, as soon as she was told what was meant by the term “oral sex,” she denied that the act had occurred. Despite the minor‘s testimony that an act of oral sodomy had not occurred, a videotape found in appellant‘s closet and played for the jury depicts an act as alleged in the indictment. When played, the videotape displays a taping date of July 15, 1995, placing the act within the time frame during which the conduct was illegal. However, the minor could not verify the accuracy of the date and a State‘s witness acknowledged that the taping date could be changed at will by the videotaper. Furthermore, this videotape, as well as another purportedly depicting appellant and the minor engaged in sexually explicit conduct, were played before the jury without the authentication necessary for their admission. See
(c) The State also charged appellant with sexual exploitation of a child.
During its review of a New York statute which prohibited the promotion of a sexual performance by a child, the United States Supreme Court noted that “criminal responsibility [for child pornography] may not be imposed without some element of scienter on the part of the defendant.” New York v. Ferber, 458 U. S. 747, 765 (102 SC 3348, 73 LE2d 1113) (1982). See also Osborne v. Ohio, 495 U. S. 103, 115 (110 SC 1691, 109 LE2d 98) (1990), where the Supreme Court ruled the Ferber requirement that prohibitions on child pornography include some element of scienter was met despite the absence from the Ohio statute of a mens rea requirement. In United States v. X-Citement Video, 513 U. S. 64 (115 SC 464, 472, 130 LE2d 372) (1994), the Supreme Court closed its analysis of a federal statute prohibiting the transportation, distribution, and receipt of child pornography by suggesting that “serious constitutional doubts” would be raised by a statute “completely bereft of a scienter requirement as to the age of
The evidence relied upon by the State to establish that appellant knew the minor was under 18 was as follows: the minor did not drive a motor vehicle in appellant‘s presence; the girlish handwriting and phraseology displayed on the greeting card the minor acknowledged sending to appellant during their relationship; the appearance of the minor in the videotapes purportedly recorded during this time;7 and her appearance and demeanor while testifying at appellant‘s trial. From these facts, all of which were established as known by appellant, the jury was authorized to conclude beyond a reasonable doubt that appellant knew the minor was under 18. Consequently, there was sufficient evidence to find beyond a reasonable doubt that appellant was guilty of the crime charged.
4. Appellant next contends that the trial court erred when it per-
5. Law enforcement officers executed a search warrant at appellant‘s home and found two videotapes in a manila envelope in a safe in a home office closet. The tapes were admitted into evidence and played for the jury over appellant‘s objection that they were not properly authenticated.8 One of the two videotapes so admitted was critical to the State‘s case concerning the charge of aggravated child molestation since that video contained the only evidence the State presented on the charge in light of the minor‘s denial that an act of oral sodomy had occurred. See Division 3 (b), supra. Appellant asserts the trial court‘s admission of the videotapes was error because the proper foundation was not laid.
The videotape seems to be “the common mechanism for presenting representations of motion to the trier of fact.” 2 McCormick on Evidence, Ch. 21, p. 18, § 214 (4th ed.). It was preceded in this role by the still photograph and motion picture film. Whether the medium is photo, film, or video, however, its evidentiary value is that it is “a graphic portrayal of oral testimony, and [it] becomes admissible only when a witness has testified that it is a correct and accurate representation of relevant facts personally observed by the witness.” Id. at p. 13. This Court enunciated that standard in 1958, when it upheld a trial court‘s admission in a contempt action of a motion picture film which depicted the defendants engaged in contumacious conduct, after noting the testimony of a witness concerning the accuracy of the film: the operator of the camera which produced the film had testified
In 1996, just weeks after this Court vacated the opinion in Berky which had adopted the “silent witness theory,” the difficulty inherent in authenticating a photo, motion picture, videotape or audiotape when an authenticating witness was unavailable was again brought to the attention of the General Assembly. Melissa Williams, Evidence, 13 G.S.U. L. Rev. 168, 169 (1996). A “Silent Witness” bill was introduced and, after much discussion and study by the legislature, was passed by both houses “to provide for the admissibility of photographs, motion pictures, videotapes, and audio recordings as evidence. . . .” Ga. L. 1996, p. 443. The result of the legislative process is
However, while
Applying the appropriate standard to the facts of the case at bar, we are constrained to conclude that the videotapes played for the jury were not authenticated. The officer who found the tapes and viewed them testified that one accurately portrayed appellant‘s bedroom and the other his living room and identified appellant as one of the persons depicted on the tapes. However, the officer never stated that the tapes accurately depicted events he witnessed. The minor testified that, at the request of the district attorney, she had viewed “some videotapes“; that one, of which she had seen “only a minute of it, maybe two,” had depicted appellant “and some woman . . . and then it was me.” She stated she had seen a minute of a video of her and appellant in his bedroom, and “a little bit” of a tape of her and appellant in his living room, but that she had never seen a videotape of her having sex with appellant. It was never ascertained that the
6. Sexual paraphernalia found in the search of appellant‘s home was admissible to show lustful disposition despite not having been recognized by the minor as a device used by appellant with her. Holman v. State, supra, 202 Ga. App. 57.
7. Prior to trial, the State announced its intent to prove, as a similar transaction, an incident that occurred between appellant and the minor in August 1995. The trial court later ruled that the State had not established satisfactorily the existence of that incident. No mistrial was necessary since any evidence of sexual intercourse between appellant and the minor in August 1995 would have been evidence of the crime charged.
8. Any error in the trial court‘s failure to instruct the jury on the law of similar transaction evidence and its limited use prior to the introduction of such evidence (but see footnote 3, supra) was harmless in that the vagueness of the minor‘s testimony concerning the dates of her encounters with appellant made it virtually impossible to determine what evidence, if any, was admitted as a similar transaction.
9. Citing Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978), appellant contends that the applicant for the search warrant which, when executed, unearthed the videotapes and sexual paraphernalia, made false statements knowingly and intentionally or with reckless disregard for the truth. After conducting a hearing
10. The minor‘s testimonial reference to having seen a minute or two of a video which initially depicted appellant and another woman before it showed the minor did not, contrary to appellant‘s assertion, place appellant‘s character in issue as there was no testimony from which it could be inferred that appellant and the other woman were guilty of prior crime, had criminal records, or were engaged in bad acts. Hilton v. State, 233 Ga. 11 (1) (209 SE2d 606) (1974).
11.
In summary, we affirm appellant‘s conviction for statutory rape. However, the erroneous admission of the videotapes into evidence without the necessary authentication requires us to reverse the aggravated child molestation conviction because the tapes contained the only evidence of the crime, and to reverse the sexual exploitation of a child conviction because we cannot say that the admission of the tapes was harmless error with regard to that offense.
Judgment affirmed in part and reversed in part. All the Justices concur, except Hunstein, J., who dissents as to Division 5.
SEARS, Justice, concurring.
I fully concur with the majority‘s partial affirmance and partial reversal of the convictions in this case. I write separately, however, to encourage the legislature to remove the scienter requirement from
I also note that this case illustrates a hard and humbling lesson — that there are intrinsic limits on the law‘s ability to impart virtue, and to form and forge character. In our society today, too much time and energy is being spent indulging obsessive self-preoccupations, to the exclusion of, interest and involvement in, or concern about other people. Not enough time or effort is being devoted to the cultivation of our people as moral human beings. (This is especially true with regard to our young people, who are our future.) As a society, we must stop tolerating the type of malignant self-gratification that Phagan displayed in this case, and demand in its place responsibility, civility, and integrity.
CARLEY, Justice, concurring.
I concur in Division 1 of the majority opinion to the extent that it concludes that there is no unconstitutional abridgement of appellant‘s right of privacy as a result of the state‘s proscription of certain private sexual conduct. As the United States Supreme Court has held, the right of privacy does not insulate “any kind of private sexual conduct between consenting adults . . . from state proscription . . . .” Bowers v. Hardwick, 478 U. S. 186, 191 (106 SC 2841, 92 LE2d 140) (1986). Neither is there any violation of a state constitutional right because “[o]ur constitution does not deny the legislative branch the right to prohibit such conduct.” Christensen v. State, 266 Ga. 474, 476 (2) (a) (468 SE2d 188) (1996).
HUNSTEIN, Justice, dissenting.
I respectfully dissent to the majority‘s holding in Division 5 that the admission of the two videotapes, State‘s Exhibits 1 and 2, was error. I thus dissent to the reversal of appellant‘s convictions for aggravated child molestation and sexual exploitation of a child.
At issue are State‘s Exhibits 1 and 2, which both depict the same middle-aged man and adolescent female engaging in various sex acts at two separate times in two different rooms in appellant‘s house (bedroom in Exhibit 1 and living room in Exhibit 2). The two people are readily identifiable throughout both tapes. Testimony established that the man was appellant; the victim testified that she was the female depicted with appellant on the videotapes shown to her by the district attorney.10 The victim did not testify that the tapes accurately
I would distinguish all the criminal cases on which the majority relies because they all involved the admissibility of videotapes not made by the defendant. The tapes were made by security cameras, e.g., Harper v. State, 213 Ga. App. 444 (4) (445 SE2d 303) (1994), or by law enforcement authorities, e.g., Allen v. State, 146 Ga. App. 815 (2) (247 SE2d 540) (1978) (federal sting operation); State v. Berky, 214 Ga. App. 174 (447 SE2d 147) (1994) (DUI video taken by officer), or by individuals operating in cooperation with the police. E.g., Freeman v. State, 216 Ga. App. 319 (1) (454 SE2d 196) (1995) (local t.v. station accompanying police officer).11 I cannot agree with the majority that the State must establish that tapes promulgated by a defendant and seized from the defendant‘s exclusive possession accurately depict scenes filmed by the defendant, when the State is able to establish conclusively that the videotapes were not altered or modified while in the State‘s possession. Because there is ample support for the conclusion that State‘s Exhibits 1 and 2 constituted probative and authentic evidence, I cannot agree that the trial court abused its discretion or committed any reversible error by admitting these exhibits. I concur fully in Divisions 1, 2, 3 (a), 4, and 6-11.