*1 A14A1676. THE STATE v. RANDLE. 724)
BARNES, Presiding Judge.
The trial court granted Petitioner request to be released from Georgia’s sex offender requirements. The State filed application an for discretionary appeal, which we granted. This appeal followed in which the State contends that because Randle’s underlying sexual offense involved contact with the victim, it created a presumption the victim suffered “intentional physical harm,” precluding Randle’s release from the registration requirements. See OCGA 17-10-6.2 (c) (1) (D); 42-1-19 §§
(a) (4). The State also argues more that Randle had the burden to establish a prima facie case for release from the registra- tion requirements but failed to satisfy it. For the reasons discussed below, we conclude that the trial court did not abuse its discretion in releasing Randle from the registration requirements and therefore affirm.
The record
reflects that
in
Randle entered a negotiated
plea of guilty pursuant
to North Carolina Alford,
register as a sex probation released and was his sentence served civil applied ofhis restoration obtained for and 2002, Randle 2001. rights) from rights (excluding political firearm-related certain *2 filed a Randle and Paroles. of Pardons Board the State requirements registration petition pursuant the sex offender for release (a) (4). to OCGA petition. hearing At the on Randle’s conducted The trial court copies hearing, his indictment certified tendered Randle hearing transcript plea for his molestation, child for sentence Georgia history Infor- Crime offense, and his criminal that parties reflecting arrests or convictions. no other mation Center completed treatment and stipulated offender all sex Randle had that probation; required part that he had not of his assessments any probation while on violations; he “did well that committed probation he had no additional treatment”; and that in his and as well history. criminal years old, that he has Randle, testified then working years, daughter custody 14-year-old been five has for of his years provides technology and his for himself field for in the probation daughter, ended because after his continued treatment very helpful.” based on what Randle testified that he “felt that was put in a treatment, [him] self he “will in his he had learned again happen anything position or even like this could where happen again.” perception that Randle further testified [could] ofthis regis- properly offenses and has committed other he has never tered as he wanted explained year required. every that Randle a sex offender registry that his so from the sex offender to be removed registra- might daughter find his others who not be bullied would signs and find he would comehome Randle also noted that tion online. in his offender things picture yard as “sex it that stated such his on with lives here.” pled guilty that he had cross-examination, Randle admitted
On genitals putting that minor and his hands on under Alford the victim. himself and contact between there had been light that in further admitted on cross-examination probably age, like or want the contact. did not the victim victim’s registry mandatory when Randle offender no While there was registry L. sentenced, in 1996. See Ga. such a established the General convicted 496) (2011) (noting p. 1. See also Jefferson 1996”). registration law until Georgia’s did not become statute that “sex offender testify hearing.
Randle was the at The State only person evidence, prosecutor argued did not but the that Randle present registration require- should not be released from the sex offender making prima because he had the burden of out a case ments facie the criteria for had been but had do so. that met failed to According to the Randle’s prosecutor, evidence of his presumption victim’s hands created victim require- suffered “intentional that imposed by ment for (c) (1) (D) release had not been (a) (4). met. See OCGA 42-1-19
At the hearing, conclusion of the the trial court remarked while the court had never before released someone from the sex registration offender requirements, grant the court would Randle’s petition the circumstances here. The trial court noted 21 years Randle’s offense occurred ago, there had been other no time, since incidents and that based on Randle’s at the testimony the court hearing, was “convinced that again.” this will never happen The trial court subsequently entered an granting order petition release from the sex
pursuant OCGA 42-1-19 (a) (4). The State filed an application for *3 discretionary appeal order, of the trial court’s and this Court granted the application, in this resulting appeal.
Before turning specific raised arguments by the on appeal, we first address the statutory applicable framework in this law, case. Under a defendant required who is comply the sex offender registration requirements imposed by OCGA § must do so for However, his entire life. 42-1-12 (f) (6). OCGA § may a defendant he petition to released lifetime registration accordance with OCGA 42-1-19. OCGA 42-1-12 § § (g). 42-1-19, Pursuant a may defendant file such petition a § if ten years elapsed have since he completed his term of imprison- ment, supervised release, parole, and probation for the underlying offense, sexual and if the six criteria set forth OCGA § (1) have (A)-(F) been (a) (4), (c) (2) met. OCGA 42-1-19 (A). Those six are: criteria
(A) The has prior defendant no conviction of an offense prohibited by 6 of Title Chapter 16 or Part of Article 3 Chapter 16, 12 of prior Title nor a conviction for any offense under federal law or the laws of another state or territory the United States which consists the same or similar elements of prohibited by offenses 6 of Title Chapter 16 or 16; Part of Article Chapter 3 of of Title deadly weapon any
(B) or use a did not The defendant offensively object, device, when used instrument likely actually person against did result in to or would be a bodily injury during offense; of the the commission serious (C) found evidence of relevant The court has not transaction; similar any
(B) did not suffer The victim during offense; the commission transportation (E) did not involve The offense victim; and during physically
(F) The victim was not restrained offense. commission (c) (1). met, “if criteria the court If these are preponderance by
finds the individual does not the evidence that any dangerous pose perpetrating future risk of a substantial releasing may an order defendant offense,” the trial court enter (f). requirements. registration OCGA 42-1-19 from the petitioning by requested who is for release from If defendant requirements, hearing the trial court must conduct (e). hearing, petition. At the trial court on may prosecutor, petitioner, evidence introduced consider “[a]ny sheriff, as other relevant evidence.” OCGA 42-1-19 as well (d) (3). grant petition whether
The trial court’s decision appeal registration requirements on for an reviewed (678 App. Baucom, abuse SE2d discretion. See In re Ga. 118)(2009); Miller legal standard, Under this the trial court’s review the trial court’s uphold findings novo, on
conclusions de and we disputed credibility long they clearly as are not facts and witness supported long findings erroneous, i.e., as the factual are Miller, 291 at 479. See Lawrence v. evidence. See 421) (2009) (discussing Lawrence, review). standards, these abuse discretion standard of Mindful of arguments. we turn to the State’s *4 trial its The State court abused discretion
1. releasing sex did “[t]he evidence failed to show that victim not suffer
because the during offense,” ofthe commission (c) (1) statutory prerequisite §§ release. See 17-10-6.2 OCGA (D); (a) (4). According State, the uncontroverted 42-1-19 of the child victim evidence showed Randle touched presumption hands, the victim suffered with his created precluding harm,” release from the requirements. unpersuaded registration plain because, We as ex- are we below, § the term “intentional harm” used in (c) (1) contemplates beyond (D) goes conduct that offensive and unwanted physical pain and involves the intentional infliction injury upon Thus, or victim. offensive touching, more, unwanted and without does not show “intentional physical harm.”
The term harm” § is not defined OCGA diligently definition, 17-10-6.2. “In the absence such a we must look Assembly. (a)” for the intention ofthe General OCGA 1-3-1 Summer- Community (2) (690 Bd., Ga. lin v. Pines Svc. SE2d doing “presume so, we that the General meant,” meant what it said and said what it afford plain ordinary meaning. (Punctuation terms their and footnote omitted.) (2) (750 504) Martinez v. (b) (“In interpretations See statutes, all ordinary signification applied except words, shall be to all words of particular subject art or matter, words connected with a trade or signification by experts which shall have the attached them in such subject matter.”). trade or with language reference And “[w]here the plain susceptible of a statute is one natural and accordingly.” construction, [we] reasonable must construe the statute Chase
Applying principles, these we note that the word “harm” commonly “damage,” “injury,” and most understood to mean principal “hurt,” or as reflected definition ofthe word in several Heritage Dictionary English dictionaries. See The American Language (1981) (defining “injury damage”); “harm” as or Web College Dictionary (4th 2001) (defining ster’s New World ed. injury; damage”); “hurt; “harm” as Webster’s Third New Interna Dictionary English Language Unabridged tional (defining “physical damage; injury”). “harm” as or mental See also Dabbs, Hickman, Cannon, Dodds Hill LLP, & 337, 346 410) (2013) (noting may supply “that dictionaries plain ordinary meaning word”). phrase Use “inten (c) (1) (D) tional harm” has a narrower necessarily damage, connotation because excludes intentional in injury, psychological, emotional, hurt that is or moral character. Dictionary (9th “physical (defining See Black’s Law ed. “any physical injury impairment land, chattels, or the human Compare body”). (a) (5) (referring OCGA 15-11-310 to “serious physical, child”); mental, emotional, or moral harm to such former (b) (4) (A) (iv) (referring physical, to “serious men- *5 by plain child”). Consequently, its to emotional, harm the
tal, or moral physical phrase ordinary meaning, in harm” the “intentional and (1)(D)contemplates (c) the intentional infliction § 17-10-6.2 OCGA requires damage, injury, upon victim, physical and thus hurt the something touch- and unwanted than an offensive more ing. ambiguity in if there same result even were would reach the
We meaning statutory phrase physical “intentional of the the statutory would lead to the same construction the canons of because result. canons, Under those by presumed enacted the General are to be
[a]ll statutes existing knowledge Assembly condition ofthe full ofthe with be con- it, to are therefore to and with reference law harmony existing law, in the in with strued connection meaning in connec- their and effect is to be determined Constitution, tion, and the but the common law the to other and decisions also with statutes reference courts. emphasis supplied.) (Footnote State, omitted; Blackmon v. 266 Ga. 542) determining (2004). App. 877, It follows in SE2d meaning language statute, in found “welook to its text well the interpretation given language that courts had same at as the (2) Haley 515, enacted.” v. 289 Ga. the time statute was (b) (712 74, Pollard, SE2d See also Wilson phrases 380) (“[W]here meaning (4) (8 SE2d words they given ascertained, are to be in a statute has been same subsequent [.]”). meaning in statutes when used using phrase including 17-10-6.2, the subsection Assembly physical harm,” was the General “intentional 2006. See Ga. L. 480 enacted App. p. 379, 1059; Miller, § 21/HB 291 Ga. at virtually (1) (a). phrase harm” is “intentional phrase “intentionally harm,” causes identical has Georgia’s simple long appeared one subsections (a) (2) (“Aperson statute. commits the See OCGA 16-5-23 [i]ntentionally simple battery . . . causes when he or she offense physical Assembly another.”). And at the time General repeatedly 17-10-6.2, construed courts enacted simple battery “intentionally phrase harm” in the causes pain goes beyond infliction of as “a insult statute (2) (587 App. physical injury.” State, 263 Ga. Hammonds v. (2) (374 Lyman State, 790, 791 See 563) (1988); Dinnan v. construction, Based on the canons of we phrase presume adopting that in harm” in (c) (D), OCGA 17-10-6.2 General aware virtually simple battery language identical found in the statute and language courts, how that had been construed and intended for apply legal phrase the courts to the same definition ofthe as had been developed existing jurisprudence. Summerlin, under our See (2). Consequently, at 594-595 that the term conclude (1) (D) harm” as used refers to *6 by goes beyond conduct that defendant offensive and unwanted touching physical pain injury to include the intentional infliction of or upon the victim. argues, phrase physi- however,
The dissent that the “intentional (c)(1)(D) cal harm” in OCGA § 17-10-6.2 any physical should be construed to mean by touching of the victim the defendant in a child moles- support argument, emphasizes
tation In case. of this the dissent that Georgia’s aggravated (c), statute, child molestation phrase “physically injures argues uses the the child” and that the Assembly specific phrase General would have that used same if it (c) (D) intended for OCGA 17-10-6.2 to mean the intentional physical pain injury. infliction of or argument herring The dissent’s is a red because both —
phrases injures “physically aggravated the child” in the “intentionally physical molestation statute and causes in harm” — simple battery virtually statute have been to construed mean thing, namely, physical injury same the intentional infliction of pain upon (2), (596 the victim. See Dixon v. n. 147) (2004); enacting Hammonds, at 7 legislation, Assembly presumed the General is that know appellate equivalent. statutory phrases courts this State have construed two Kachwalla, See State v. 889-890 Assembly Thus, the fact that the General chose use the phrase physical simple battery harm” drawn from the equivalent phrase “physical injury” statute rather than drawn aggravated child molestation statute is distinction without bearing difference, has no on the outcome in this case. Additionally, Georgia’s battery we note that statute, (b), provides person “[a] that intentionally commits the offense battery physical of sexual when he or she makes contact parts body person with the intimate of another without the person.” (Emphasis supplied.) If, consent of that as the dissent argues, any physical the General had intended for touch- ing of the victim in a child molestation case to exclude a defendant potential registration require- release from the sex offender “physical phrase simply legislature used the could have
ments, the presume must the sexual statute. We drawn from contact” Assembly’s language, General that the absence of phrase the narrower instead to use decision (c) (1) (D), of considered “was a matter 17-10-6.2 harm” OCGA omitted.) (Punctuation State, 316 footnote Gordon choice.” (1) (a) (728 App. 42, 46 reasons, term “inten- conclude that the these combined
For (D) (c)(1) refers to 17-10-6.2 § the intentional harm” as used OCGA tional involving infliction of the defendant conduct contrary Consequently, pain injury upon the victim. underlying argument, sexual offenseinvolved that the State’s standing not, of the victim does and unwanted offensive alone, presumption of “intentional that create a imposed precludes satisfying the for release a defendant from criteria (D). (c) (1) § 17-10-6.2 had the that Randle 2. The also more prima for from the sex facie case burden establish including showing registration requirements, (1) (D) victim did not suffer “[t]he that during offense,” the commission ofthe finding trial court abused its discretion disagree. satisfied burden.2 We petitioning true burden on the defendant
It is *7 requirements registration the to make out release from sex offender prima release sufficient to shift the facie case of entitlement to contrary. Baucom, In 297 to the to show the See re Ga. burden App. State (1)(b). (1); App. Miller, “[w]hat But amount at 663 at 481 proof question change be will the onus or burden is a to evidence each the sound discretion the trial court.” decided in (Citation case punctuation omitted.) App. Baucom, In re at statutory (1). Moreover, criteria for release found 663 the (c) (1) negative, “[i]t in the and because is often 17-10-6.2 are stated required prove negative, degree proof impossible to to . . . the vary, negative proposition support shift the burden must and to 2 trial not the criteria The State further court did consider all of (c) imposed (1) concluding should be released for release 17-10-6.2 that Randle OCGA § (a) (4). pursuant to OCGA 42-1-19 While the from the sex offender eligible for release under order without elaboration that Randle trial court’s states (a) (4), required findings of 42-1-19 court was not to include written fact and the Baucom, App. any And in its In re 297 at 663-664 absent conclusions of law order. See Ga. granted contrary, presume showing that the law when the trial court followed State, State, 28, 32) (2013); petition. App. Rivers v. 324 SE2d Randle’s See Lee v. Ga. 31 633, (607 (1), n. C.E. & Hyer Holmes according to circumstances the case.” Co., SE And if the (79 Ga. defendant for release from petitioning presents evidence of circumstances fact,” reasonably negative it could be “that in truth the inferred the burden shifts to the to “that not negative show does exist.” Woods v. (a) (211 (1) 300) (1974) Ga. (discussing where involves burden-shifting “proof nega- case tive”).
Here, parties’ stipulations, after considering certified court, into records tendered Randle’s the trial court testimony, that prima found Randle satisfied his facie burden of entitlement release sex registration requirements. light previously opinion, say summarized in this we cannot that the trial its respect court abused discretion. With to OCGA § (D), 17-10-6.2 there (c) (1) underlying was evidence molestation offense consisted Randle hands,
child victim his trial court was authorized to infer from this circumstance there was no intentional infliction of pain injury upon victim, and thus that the sexual offense did rise to the level of so as from preclude requirements. the registration See Division Clark supra; App. 268, 271 (3) (physical precedent only) (offense by touching that was committed victim “did any not involve . . . . . . factors listed OCGA § (1)”). the trial order Accordingly, granting court’s petition for release is affirmed. JJ., J., Judgment Doyle, Miller Boggs, concur. P. affirmed. J., JJ.,
concurs in judgment only. Ellington, Branch, P. Dillard and dissent. Judge, dissenting.
Branch, plea entered a guilty charge to a of child molestation in petitions 1993. Randle be now released sex offender registry requirements pursuant (a) to OCGA (4), may which a judge met, if grant certain including conditions are victim did not “[t]he suffer during the commission of the offense,” OCGA 17-10-6.2 (c) (D), and that “the aby court finds preponderance of the evidence that the individual does not pose substantial of perpetrating risk dangerous future sexual offense.” *8 (f). OCGA The court granted 42-1-19 trial petition Randle’s and the § appealed, Randle, arguing genitals touched who of a ten-year-old boy, cannot show that did his victim not suffer “inten- tional majority affirm, harm.” The holding would more, “evidence of offensive and touching, unwanted without does not ” respectfully because I dissent harm.’ show ‘intentional touching amounted of his child victim Randle’s of eligible not to be released such that he is requirements.3 registry from offender sex specific statutory interpretation, purposes a statute will “For contrary any general prevail statute, absent indication over legislative intent.” Vines relating battery majority’s on to the crimes reliance law battery thus harm” is to define “intentional
and sexual misplaced; instead, child statutes should consult the molestation against unique by sexual crimes a child. harms caused to address person person “[d]oes if that commits child molestation A presence child or with indecent act to or immoral or satisfy years age to arouse or sexual intent (a) (1) person.” § 16-6-4 either the child desires of (emphasis supplied). thus The crime of child molestation includes touching touching sexually not both motivated acts involve aggravated however, molestation, crime child occurs a child. The person child which act “commits an offense of molestation when a sodomy.” physically injures an act of OCGA 16-6-4 the child involves (c) (emphasis supplied). intended that If the General involving touching the mere of a child be child molestation cases involving category excluded from crimes certainly (D), have harm,” § 17-10-6.2 it could referred just physical injury, to a distinction between (c). aggravated statute, did in the child molestation not, “a But it did a decision which we must assume was matter (a) (728 considered choice.” Gordon omitted). 720) (2012) (punctuation Likewise, the and footnote legislature’s phrase “physical contact,” not to use decision necessarily the victim, statute that does not involve a child (b), compel not the conclusion that see OCGA 16-6-22.1 does mandatory specific authorizing deviation in the context of boy; not in 2006 for the on children are sexual sexual offenders are commit consideration not re-offend. show that that Randle has again. am also I fraction many That Randle has not been accused of child molestation since his offenses, he as set forth in punishment of their of the trial deeply skeptical will never extremely crimes.” have predators attacked his re-offend. When the General of sexual offenders many OCGA § likely Ga. L. who more victims than are daughter ... present court’s repeat p. 379, (a) (4)), an (and included the hardly certitude that Randle “will never” molest a extreme their it noted that “sexual 1. conclusive Further, Assembly adopted ever offenses; threat reported, same proof some sexual offenders criteria for and are that he has not or will public safety. Many release in victim offenders prosecuted was a sentencing who young prey does *9 physi- molester, minimum sentence a child the term “intentional for touching harm” excludes an of cal the victim. The distinc- opposed molestation, element ofthe tive crime ofchild to the lesser battery, touching included offense sexual is that act or occur for purpose arousing aggressor sexual desires either the (a) (1), (b), (d). the child victim. See §§ battery, crime, was convicted this and neither we nor the ignore may history touching trial court his established a child with gratifying the intent of his own sexual desires. majority’s battery citations law of and sexual inapposite,
are thus its conclusion the term “intentional necessarily encompasses physical pain injury ato (a) child victim is error. §§ OCGA 17-10-6.2 and 42-1-19 authorize mandatory imposed a trial court to deviate from a minimum sentence aon child molester when that molestation does not involve physical touching, a child. As this case does involve such eligible registry require- Randle is not for release from sex offender I ments. therefore dissent. Presiding Judge Ellington I am authorized to state that
Judge join in Dillard this dissent. Decided March Attorney, Skandalakis,
Peter J. Mooradian, District Robert W. Attorney, appellant. Assistant District for appellee. Firm, The Kirk Law Kirk, Christa L.
A14A1801. BURNS v. STATE OF GEORGIA DEPARTMENT OF
ADMINISTRATIVE SERVICES et al. Judge. MCFADDEN, discretionary, pro appeal superior This is a se from court’s setting temporary disability order an aside award of total benefits Compensa- made to LaVerne Burns the State Board of Workers’ (the Board). argues matter, tion As a threshold Burns that defendants Georgia Department State of Adminis- (collectively, employer) timely appeal trative Services failed to superior award to the record, however, court. The shows otherwise. superior merits, toAs Burns that it error for court agree, superior appar- to set aside the award. We because the court