*1 THE STATE v. VINES. A97A0356. Judge.
Andrews, Chief of child molestation. E. indicted for the offense Donnie Vines was contending general alle- filed a demurrer to the indictment Vines sexually explicit telephone gation engaged in a conversation that he satisfy desires intent to arouse and his sexual with a child with the allege as set forth the offense of child molestation was insufficient (a). § The trial court the demurrer and dis- in OCGA 16-6-4 sustained appeals pursuant § 5-7-1 the indictment. The State to OCGA missed (a) (1). The indictment that committed the offense of Vines by “performing] and indecent act to intent to child molestation an immoral (16) years, [L. N.], a child under the of sixteen satisfy calling arouse and the sexual desires of said accused said engaging child on in conversation about sexual fondling private parts, acts included intercourse and oral sod- omy. § . . .”The offense of child molestation is defined in 16- person “A follows: commits the offense of molestation any when he or she does immoral or indecent act to or in the of or with arouse or child under the with the intent to satisfy person.” the sexual desires of either the child or the Vines contends that the offense of molestation cannot be Specifically, committed means of a conversation. he con- that, tends under the child molestation offense must be physical presence speech committed in the alone, of the child and that unaccompanied by action, is insufficient to statutory requirement perform accused immoral or inde- cent “act.”
Addressing requirement first, the “act” we find no merit in Vines’ allege contention that the indictment failed to that he committed an (a). contemplated § immoral or indecent “act” as argues merely alleges spoke that, Vines since the indictment he allege by him, the child and fails to other action taken he committed “[a] no “act” as 16-2-1, defined the statute. Under OCGA ‘crime’ joint opera- is a violation of a statute of this state in which there is a negligence.” tion of an act or to act and omission intention or criminal may may defining particular A statute not use the word “act” in it, offense. In those that do use the word “act” is used to refer to vari- types physical speech. ous movement and some statutes “act” may particular be limited to a kind of movement. For exam- ple, person prostitution by performing commits the offense of “an money.” act of sexual intercourse for OCGA 16-6-9. Other statutes use the word “act” to refer to both acts of movements. For and other “[a] example, pimping commits the offense agrees following performs acts: Offers he money or other procure prostitute thing Receives another; ... or for consideration, prostitute, know- without lawful from a of value prostitution.” OCGA 16- ing in whole or it was earned for depending issue, “an act sufficient on the statute Thus, 6-11. criminal nothing liability movement of more than the consist *2 spoken Scott, tongue & Substan- LaFave to form words.” so as the tive Criminal (b) (1986). § Law, 3.2 gen- defining refers of child molestation the offense The statute erally without ref- indecent act” of an “immoral or to the commission speech any physical particular and without movement erence type not, specific It does for exam- of act. limitation on physical require ple, the child which contact with that the act involve battery as set of sexual of the offense for the commission is Although molesta- § of child 16-6-22.1. in OCGA forth tion convictions have involved physical contact between
some form of involving victim, we have affirmed convictions molester and the physical no contact. in which there was and other actions 769) (1986) (in (342 App. 300, one SE2d State, 178 Ga. Smith the use of indictment, accused showed and described count of a condom to and, having erection, him an the child and the observed a mechani- the child use count, in the accused observed another area); Thompson App. genital State, 187 Ga. her cal vibrator on 563 819) (1988) (accused (370 required child to dance naked SE2d 133) (382 him); State, Blanton v. 191 Ga. front of (1989) (accused get exposed into a to child and asked child to himself him). doing, that the child molestation In so we have held car with [the public’s] “proscribes sense of acts which offend affording protection propriety in oriented to a child’s those as well as sexually suggestive act or acts are more cases where the simply A in nature. child’s mind than assaultive misconduct supra Thompson, by Smith, 301; as well.” victimized molestation (OCGA 16-6-4) § supra. and the stat- The child molestation statute (OCGA 16-6-3) statutory prohibiting rape § and enticement of utes (OCGA 16-6-5) purposes § enacted as were children for indecent general children under the of 16 scheme to damage resulting from sexual exploitation. (373 Co., 368, 369 Farm Fire &c. 188 Ga. Roe v. State (297 23) (1988); App. 493, Coker v. 68) (1982); Barnes v. SE2d (1979). alleged construing indict whether the conversation by type OCGA 16- “immoral or indecent act” ment is a (a), purpose as a of the statute the above-stated we consider Ga., 266, 267 D. G. D. v. State whole. purpose mind, With that have doubt indictment alleging that Vines initiated a with the child about sex- conversation including private parts, fondling of ual acts intercourse and oral sod- omy satisfy alleges with the intent to arouse and his sexual desires an immoral indecent act which the child molestation statute was prohibit. sexually exploitative alleged enacted to nature by speech unaccompanied is act not altered the fact that it involved allegation Accordingly, alone, other acts. conversation allegation without further contact the child or statutory Vines, other conduct sufficient to (a) requirement in OCGA 16-6-4 an accused committed “immoral or indecent act.” Likewise, we find no merit to the contention that OCGA 16-6-4 prohibit does not an immoral or indecent act committed prohib- any
accused in a conversation with a child. The statute “any its immoral or indecent act or in or with years. Although child under the statute .” . .
obviously applies physical presence to acts committed in the require physical presence, child, of the guage it does such and the lan- clearly enough apply broad to an act committed com- munication conversation between the accused and the *3 child. alleged
The mere fact that the conversation was communicated by telephone physical presence rather than in the of the child does change sexually exploitative psychologically damaging the and scope nature of the act and thus does not remove it from the of acts (a). by § OCGA 16-6-4 See v. Usher 143 214) (1977) (rejected 843, the defendant’s contention by telephone prohib- terroristic threat communicated was not 16-11-37). by § People ited OCGA A similar conclusion was reached in (Cal. Rptr. 1992), Imler, Cal. 2d 2 Dist. a California involving attempted by telephone. case child molestation In Califor- touching nia, child, of the either the child accused or the him- instigation accused, self at the is a element the committing offense or lascivious act . child molestation which is defined as “lewd upon . . or with the ... aof child who years, arousing, appealing with the intent to, gratifying passions, [the accused] lust, or the the or sexual desires of § . . .” Code, 288;
child. telephone, Cal. Penal id. Imler called the child on falsely holding the tage, told child he his father hos- repeatedly penis. told the child to disrobe and touch his The comply eventually hung up. Although child did not Imler was not committing child under molestation the California stat- attempting telephone ute, the court affirmed his conviction for to molest the by speaking to the child over and held that required. Id. child was not Imler’s Lastly, contention find merit Vines’ alleged proscribe under conversation not intend to did § provisions such 16-6-4 because of OCGA the child molestation telephone disorderly specifically prohibited conversations (a) (4). provisions the latter stat- 16-11-39 Under of OCGA conduct disorderly person “[a] utory provision, conduct offense of commits the provocation, [w]ithout person[,]. uses obscene vul- such . . by telephone gar profane to a of or in the breach of threatens an immediate which (a) (4), formerly [OCGA peace.” proscription “The (2)] upon apparent determina- rests unprovoked given of an that, and circumstances’ ‘facts tion hearing type employment of cer- within of a certain potential young listeners, breach of there is for an immediate tain the Crolley peace.” disorderly provision intended to Thus, this conduct statute was response anger protect guage such lan- and violent use of hearing provoke. tend to within the of children children from which was enacted to molestation physical exploita- damage resulting from sexual proof. purpose and tion, has a different different elements sustaining dismissing the demurrer and The trial court erred the indictment. Birdsong,
Judgment McMurray, J, J., P. P. concur. reversed. Beasley, Eldridge, specially. Smith, J., JJ, concur dis- Ruffin sents. Judge, concurring specially.
Beasley, analysis conveyed majority opinion, in the In addition clearly point meaning there is the that the common of “molestation” of which defendant is accused includes the behavior Vines Dictionary, According Third International “moles- case. Webster’s vexation; an act tation” means “a cause or state of harassment: molesting: annoyance, injury obstruction; wilful inflicted instance rights person, upon with his use of as to another interference *4 position, property.” character, social statutory caption-of
Although crime described OCGA law, part § 16-6-4, molestation,” 1-1-7, “Child is not a OCGA meaning in the of the statute itself. The the offense is so named ascribed expressly require perpetra- the statute does pres- physical presence; be in each other’s “in tor the victim point only of” is one of three alternatives. On this the statute is ence dictionary meaning. in accord with the applied case, afoul
Thus in this does not run
783
sufficiently explicit
principle
penal
must
that “a
the
inform those who
part
subject
are
to it what conduct on their
will
(Citations
punctuation
penalties.”
omit-
them liable to its
render
(4) (D) (349
717) (1986).
ted.) Chancey State,
415,
v.
428
SE2d
Ga.
(1994);
590,
State,
v.
SE2d
See also Johnson
483) (1994).
(443
Applying the
Burch,
I that the trial court dis- missed the indictment in this case. It is clear that the child molesta- against tion statute was intended to children the conduct alleged separately in the indictment. I write to address the dissent’s telephone “that conclusion calls, intended to treat obscene separate others, whether to minors or as misdemeanor offenses from the of child molestation.” agree telephone
I with the dissent that obscene calls to minors governed by believe, however, OCGA 46-5-21. I do not proscription telephone protects “obscene calls” minors type proscribed harm the same as is the child molestation stat- agree properly I ute. also with the dissent that this issue is resolved by application statutory believe, of the rules of I construction. how- ever, that the dissent has overlooked a critical distinction between (OCGA 16-6-4) the child molestation statute and the statutes (OCGA merely prohibiting the use of obscene via 46-5-21). §§ 16-11-39; statutory applicable The rules of construction that are in (1) giv- case be stated as follows: determine the evil, intent (2) ing meaning remedy; apply law, to the old and the (3) ordinary signification give meaning words; to all to each any portion statute and avoid constructions which render mere sur- plusage; pari dissent, as stated statutes “in materia” together. City Pope, § 1-3-1; are construed OCGA Buchanan v. Upon application of these four rules, I conclude that child molestation is an offense that can be com- mitted via such construction does not render against using meaningless prohibitions over §§ conduct is as that (a) and 16-11-39 *5 784 (a) (1) “[m]ake using proscribes § 46-5-21
OCGA
a.
suggestion,
proposal
request,
obscene,
or
which is
comment,
(a)
filthy,
simi-
lascivious,
or indecent.”
lewd,
larly proscribes
using
language
“in
of or
tele-
such
phone
which threatens
of
a
peace.” Importantly,
define the
statutes
both
immediate breach
merely prohibit
general
the use of
intent crimes which
as
offenses
respective
language
stat-
within the ambit of
or indecent
“
Georgia
Supreme
utter-
has observed ‘that such
Court of
ute.
any exposition
ideas, and are of such
of
of
essential
ances
slight
no
may
step
be
as
to truth that
benefit
social
a
value
clearly outweighed by the social interest
in
them
derived from
is
”
(1) (197
morality.’
506,
State,
v.
Breaux
order
695) (1973).
context, this
has
such
Court
described
another
SE2d
Housing
“personally
Coleman v.
Auth.
obnoxious.”
as
of
legis-
Americus,
166,169
Our
the use of such
criminalized in certain forums
lature has therefore
language,
governs
a
the terms of both statutes
broad
which under
socially
speech.
unacceptable
spectrum
And, in
of obnoxious
discourage
public
conduct,
from such
its use
order
sentencing.
provided
has
for misdemeanor
See
(b).
(a);
§§ 46-5-21
comparison,
specific
molestation,
is
intent crime
Child
in
a
involving
far more
nature. OCGA 16-6-4
conduct
a
serious
merely
criminalize immoral
indecent
does
addressed or directed
years.
Rather,
to a child under the
requirement
perpetrator
have the
that statute includes the
satisfy
specific
the sexual desires of either the
“intent to arouse
[perpetrator].”
assume,
if we
Id. Even
the dissent
finds, that
is
difference in the
three
there
phrase “any
statutes,
under the child molestation
spe-
conjunction
must
read
immoral or indecent act”
be
requirement.
State,
See
v.
We have observed “sexual young requires special a lascivious motivation or bent unique requires is, . it a bent mind for an accused mind. . to desire to . That young child or his own sex- the sexual desires using body through young a child’s the medium some ual desires (Emphasis supplied.) 29, Adams form.” (b) (430 is “The inclination the use virulent original.) object. (Emphasis young It . Id. child as a sexual . .” sexually specific exploit young child’s in “some intent to the form” that particularly harmful. makes the immoral or indecent “act” observes, As can exploitation harm such be Thompson physical. as well as See psychological 819) (1988) (“[a] child’s mind be vic- timized molestation as well child’s The child victini body]”). [as what may crudely “phone sex,” physi- be described as although acts, cally harmed such certainly may suffer harm. it is not Accordingly, physi- close perpetrator cal the victim to commit the the harm. proximity offense cause *6 Rather, can psychological harm result whenever individual com- immoral mits an or indecent act with the intent specific sexually evil, the child That is the exploit legislature victim. the enacted child victims from that evil. id. Fur- protect See thermore, evil, isit this the use specific intentional as a and the harm that on a object, child, justi- sex such conduct has that fies the sentence.
The critical difference the merely between statutes which pro- hibit the use and the child molestation statute is that the obscene do statutes children from sexual psychological damage resulting Although in exploitation. immoral, some cases the same language may described as inde- cent, obscene, vulgar, profane, or it is the intent specific perpe- trator to use the child as an of sex object that makes it particularly damaging legislature child victim. The did not intend for OCGA protect against 16-11-39 to such sexual §§ exploitation. Neither are the misdemeanor sanctions under imposed those statutes sufficient to: deter individuals from such sexual exploitation, punish guilty those of such acts. I
Finally, disagree with the dissent that majority’s construc tion of the child molestation statute creates a substantial risk that will perpetrator be unable to determine same conduct his part on renders him liable for child molestation instead of dis turbing the peace making obscene telephone Knowledge calls. victim’s is not an molestation, element of child it is no defense defendant did not know the victim’s age. See Tant v. 357) (1981). State, Furthermore, the per knows, petrator others, better than what his or her intent in using the proscribed and it is for the language, factfinder to determine whether the defendant acted with the intent. See Constantino requisite v . Blanton v. (1979); State, conclude,
I thus as does the trial majority, court errone- ously sustained the demurrer and dismissed the indictment.
I am Judge joins authorized to state that Eldridge special concurrence. dissenting. Judge, Smith, correctly my opinion, respectfully trial In court dissent. I legisla-
interpreted intended statute as the child molestation only majority, contrast, has rewritten that statute ture. scope question deal- effect of the statutes into has called but disorderly ing communications, conduct, and with obscene attempt. has rendered the child molestation statute It also criminal impermissibly vague. molestation when he or
“A the offense of child commits act to or in the of with does immoral indecent she intent to arouse or sat- person.” isfy § 16- the child or the the sexual desires either (a). Georgia previous construed this to include No decision has 6-4 an Georgia court has act committed via because “any immoral or indecent act” a verbal included the definition of the child. made outside the immediate act appear It also intended this result. does not apply principal considering legislative enactments, we must statutory requirement construction. These rules include the rules that we
“give meaning and . . avoid con- each the statute . surplusage. portion mere A render a of the statute structions which statute must be construed in relation to statutes which it is a subject-matter, briefly relating part, and all to the same statutes together, *7 pari materia,’ are harmo- called statutes ‘in nized wherever construed possible, to ascertain the so as intendment Finally, give a and statute effect thereto. it is basic rule of construction a provision or should construed to make all constitutional give intelligent parts effect its each harmonize a sensible and part, presumed legislature it is not that the intended that as (Citations meaning.” punctuation would be without omitted.) (1996). City Pope, App. 716 Buchanan v. Ga. of legislature Applying apparent rules, these it is did not telephone minors within the ambit intend include obscene calls to Doing the child molestation statute. would create conflict with of so proscribing or conduct: 46-5- statutes the same similar two (a), telephone threatening, harassing calls,1 obscene, or (a) (4), disorderly using OCGA 16-11-39 conduct “obscene and presence vulgar profane language telephone to or in the of or a threatens an immediate requirement which peace.”2Bearing mind of the breach 1 Appellee charged and bound over this statute. inapplicable had of The latter here because the victim attained time of the offense. meaningless any provision legislature, considering of
render strictly, also that we are bound to construe criminal statutes Flana- gan (1994), State, 212 Ga. I conclude that legislature telephone calls, intended to treat obscene whether separate others, as minors misdemeanor offenses from the of child molestation. defined I do not believe that the offense distinguished, majority contends, can be as the it because peace. peace” a
addresses defined as “the breach “Breach of the has been breaking disturbing public peace of the riot- proceeding. (Emphasis [Cits.]” supplied.) ous, forcible or unlawful City Columbus, Sanders v. 441, 443-444 473) (1976) (jury question speeding whether traffic violation for peace). presence per- constituted breach The one even peace. e.g., Hopkins son convert an act into a breach See, Savannah, First Union Bank 144) (1989) (attempted repossession presence of vehicle in peace). Assuming, however, owner constitutes breach of the obscene that an telephone public distinguished call made in can be from an private promoting call obscene made in as a breach of the peace, majority urges, flagrant as the a and defiant use of the tele- many phone before misdemeanor, witnesses would a constitute mere single private felony. while call would become could not have intended this anomalous result. is, moreover,
There a rational distinction to be made between perpetrated by calls and child molestation words physical or actions in the of the victim. The cases cited showing by child molestation committed simply reading other non-contact actions confirm this exception because all without were in the made Assembly may the victim.3 Members of the General well have con- perpetrated cluded that verbal acts from an indeterminate distance telephone, disturbing, pose over the while offensive and do safety same threat to the minor’s as verbal physical presence. acts committed in the minor’s citing affirming attempted a California decision conviction majority ignores via child molestation the crucial dis- attempt tinction that the defendant here was not *8 but completed might with crime. Whether this defendant’s conduct step [the] have constituted “a substantial toward the commission of crime,” § 16-4-1, I note, however, is not before us. committing should noted It also be that this defendant presence victim, merely “in the of” offense but “to” the victim. many formerly reading
majority’s convert acts considered will e.g., completed attempted See, into crime. Witt- child molestation (1988), aff’d, schen v. 885) (1989) verbally (appellant a invited child who perform properly act convicted of a lewd was to his molestation). attempt commit the offense to liability Finally, imposing OCGA 16-6-4 for defendants of the victim raises substan- never in the who were tial process “In its fairness concerns. classic formulation due establishing vagueness, unconstitutional the standard for sufficiently penal explicit Supreme must be Court held subject part on their those to it what conduct will to inform who penalties. intelligence If men of common them to its render must liable meaning pro- guess statute, the statute violates due at the [Cits.]” (Punctuation omitted.) Chancey of law. cess (D) (349 415, 428 telephone question offensive, that call is There is no an obscene regardless age. disgusting of his or her It intrusive, and to victim scope extending apparent, however, that molesta- is tion statute the risk to calls creates substantial that include perpetrator the same conduct be unable to determine when will felony him liable for the of child molestation on his renders disturbing peace or an (as of the misdemeanor instead telephone recipient appears do call. Callers who not know here) subject dial at random be be the case or who numbers would age happens penalties if a answer age if the caller is unable to determine the Although knowledge recipient from her voice. of a victim’s his or offense, claims not to is not an element of know the a child molester who personal of a victim with whom he was direct contact position significantly in a different of a random obscene perpetrate clearly caller has the intent to a dis- caller. gusting victim, and obscene intrusion into the life of his but he can- object “specific [a] sex,” intent to child as an not have noted use special personal concurrence, he has con- no direct any age. victim, could be of Such a lack of tact with an unknown who knowledge completely removes the of intent or element required “unique the offense of child molestation. bent mind” for Although repug- the defendant’s conduct here with we view ought nance, for his the fair notice of the not to allow distaste behavior erode given principle all must bedrock citizens criminality scope penal- conduct, and the of certain slowly carefully proceed imposed for must ties its violation. “We public cannot allow our revulsion of sex- in this era awareness. We into to turn courts a forum which the ual abuse or molestation our *9 Butler, State v. and affirmance.” becomes the conviction accusation 684) (1986) (Smith, dissenting). J., 448, 454, n. 4 respectfully reasons, I dissent. For these 11, 1997 Decided June Judge Before McGarity. Attorney, McBerry,
Tommy Floyd, Assis Thomas R. K. District Attorney, appellant. for tant District Drosky, appellee. for
William C.
A97A0362. DANIELS et al. v. JOHNSON. Judge.
Andrews, Chief by plaintiff appeal1 Daniels, Sr., below, arises from an This involving Georgia August 23, accident a Dollar automobile York, driven New York resident John- Rent-A-Car rented New by Chrysler per- son, and insured for Dollar Insurance. Johnson was Company sonally she struck the insured Allstate Insurance causing injuries. occupied Daniels, son, his Daniels car Sr. and including Company, Insurance unin- was insured Auto-Owners coverage coverage, which is the issue here. sured/underinsured individually Daniels, son, his filed suit and on behalf of Chrysler policy provided the New York- Johnson. Dollar’s Insurance required coverage Daniels, on the Johnson car. who main- 10/20/10 coverage 50/50/50, caused Auto- tained uninsured/underinsured copy complaint. to be served with a of this The Daniels there- Owners against Chrysler $10,000 their and Allstate for after settled claims payments executing stating each, releases the Daniels executing pursuant were them to OCGA 33-24-41.1. Chry- investigation
Auto-Owners’ additional determined that primary liability engage sler, carrier, was licensed to insur- Georgia Thereupon, at the time of the accident. ance business Johnson, Auto-Owners raised the defense of the release of tortfeasor coverage failure to available from because of the Daniels’ exhaust Chrysler, coverage Georgia’s statutorily $15,000 on mandated minimum based (a) (2), That under OCGA 33-34-3 the “deemer statute.” policies states that all of insurers authorized to do business Georgia requirements are “deemed to the minimum chapter policies if a or contracts of insur- motorist insured facts, stipulated as set out hereinafter. The case was submitted to the trial court on