TOMPKINS v. THE STATE
No. A03A1714
Court of Appeals of Georgia
February 4, 2004
Reconsideration Denied February 23, 2004
595 SE2d 599
When an appellant wishes to challenge a ruling of a trial court, a timely filed notice of appeal is an absolute necessity.
Appeal dismissed. Barnes and Mikell, JJ., concur.
DECIDED FEBRUARY 4, 2004 —
RECONSIDERATION DENIED FEBRUARY 23, 2004
Varner, Stephens, Humphries & White, Jeffrey L. Riddle, Keilani Kimes-Parker, for appellant.
Thurbert E. Baker, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, P. Brian Campbell, Assistant Attorneys General, for appellee.
A03A1714. TOMPKINS v. THE STATE.
(595 SE2d 599)
JOHNSON, Presiding Judge.
Pursuant to a stipulated trial before a judge sitting without a jury, Steve Tompkins was convicted of two counts of child molestation. He appeals, arguing that the state failed to prove venue and that the judge should have ruled that the child molestation charges are barred by the statute of limitation. The argument concerning venue is without merit. But the trial court‘s statute of limitation ruling was, in part, erroneous. We therefore vacate Tompkins’ convictions and remand the case for a new trial within the parameters set by this opinion.
On July 3, 2002, the Cobb County grand jury indicted Tompkins
The trial then commenced, but Tompkins’ attorney refused to participate, claiming that she could not provide effective assistance of counsel due to her lack of preparation. A jury was picked and the state presented its evidence, all without any participation by Tompkins or his attorney. The state‘s first witness was Tompkins’ stepdaughter, who testified that the acts of molestation occurred at their home in Cobb County. The stepdaughter‘s biological father and a detective also testified, after which the court ordered a recess.
When the trial resumed the following day, October 22, a new attorney appeared in court on behalf of both Tompkins and his original lawyer, who was facing contempt charges for refusing to participate in the trial. Tompkins and his original lawyer waived any conflict of interest in having the same attorney represent them. Tompkins’ new counsel then moved for a mistrial, waiving the speedy trial demand and waiving any future claims of double jeopardy. The trial court granted the motion for a mistrial.
On January 13, 2003, Tompkins was back in court, represented by his new counsel and another attorney. The trial court first heard Tompkins’ plea in bar, which asserted that the five-count indictment is barred by the statute of limitation. The court granted the plea as to the aggravated sexual battery and attempted rape charges, finding that they are barred by the statute of limitation. But the court denied the plea as to the three child molestation counts, and a stipulated bench trial on those charges was then held.
No witnesses testified at the bench trial. Rather, at the outset of the trial, one of Tompkins’ lawyers told the court that the defense would first stipulate to the facts proffered by the state, would next present a summary of its own evidence, and would then ask the court to render judgment based on the parties’ proffered evidence. The prosecutor then summarized the state‘s case for the court, stating that the evidence would show that when the victim was 12 years old, she and her mother and sisters began living with Tompkins. When the victim was aged 13 to 15, Tompkins molested her at their home. On several occasions he touched her breasts and vagina with his hands, and once he touched her vaginal area with his penis.
One of Tompkins’ attorneys then made a proffer of the defense
The judge found Tompkins guilty on two of the child molestation counts and not guilty on the other count. Pursuant to a negotiated sentencing recommendation between the state and the defense, the court sentenced Tompkins to serve ten years on probation as a first offender. Tompkins appeals from his child molestation convictions.
1. Tompkins contends that the state did not prove venue because in its stipulated proffer of evidence at the bench trial the state never mentioned that the crimes occurred in Cobb County. While venue is an essential element of the crimes charged, parties may agree to stipulate to facts in a criminal case.1 This court has rejected attempts to appeal stipulated issues after bench trials.2
In Scott v. State,3 we held that the defendant could not challenge the sufficiency of the evidence on appeal because his stipulation at a bench trial led the state and the court to believe that the only disputed matter was if certain evidence should be suppressed.
It is obvious from a review of the record that the defense attorney led both the trial judge and the prosecuting attorney to think that the only issue contested by the defendant was whether the evidence, obtained by the search of defendant, should be suppressed. The defense attorney made it clear to both the prosecuting attorney and the trial judge that her main goal in defending this case was to preserve for appeal the denial of defendant‘s motion to suppress. Defense counsel led the trial court to believe she conceded that the State had otherwise met its burden of proof. Defendant thus waived his right to challenge the sufficiency of the evidence of the elements of the crimes charged.4
The instant case differs slightly from Scott in that Tompkins did not file a motion to suppress and did not waive all challenges to the sufficiency of the evidence. But those differences are immaterial because Tompkins’ stipulation clearly led the trial court and the
It is apparent from a review of the record that Tompkins’ defense at the stipulated bench trial was twofold and in no way contested venue. His first and primary defense strategy was to have the trial court find that all the charges are barred by the statute of limitation. When the trial court ruled that the three child molestation counts of the indictment are not time-barred, Tompkins proceeded with his second defense strategy, which was to challenge the reliability of the victim‘s accusation that he had molested her. Tompkins’ attorney did this during his proffer of the defense evidence by asserting Tompkins’ denial of the accusation, by attacking the victim‘s credibility, and by citing evidence of Tompkins’ good character. But Tompkins and his attorneys never contested the issue of venue during the defense proffer, nor at any other point of the stipulated bench trial.
The record plainly reveals that the stipulation by Tompkins’ lawyers led the trial judge and the prosecutor to believe that the only contested issues were the timeliness of the charges and the believability of the victim‘s claims of molestation, not whether venue was proper in Cobb County.5 By making it clear to the court and the state that the defense‘s goal at the stipulated bench trial was to contest only those two issues, Tompkins and his lawyers waived any right to challenge the sufficiency of the evidence of venue for the first time on appeal.6
2. Tompkins argues that the trial court erred in not finding that the two counts of child molestation of which he was convicted are barred by a four-year statute of limitation. As discussed below, Tompkins’ reasoning is flawed. However, the bottom line of his argument is partially correct because the trial court should have found that a portion of the two child molestation counts is barred by the four-year statute of limitation, while another portion is not barred because it falls under a seven-year statute of limitation. The court‘s partially erroneous ruling mandates that we vacate Tompkins’ convictions and remand the case for a new trial.
(a) Because Tompkins has no prior child molestation convictions, the maximum sentence he faced at trial was 20 years imprisonment.7 Since he did not face a possible punishment of life imprisonment or death, the applicable statutes of limitation for his prosecution are found in
Prosecution for felonies other than [murder and other crimes punishable by death or life imprisonment] must be commenced within four years after the commission of the crime, provided that prosecution for felonies committed against victims who are at the time of the commission of the offense under the age of 14 years must be commenced within seven years after the commission of the crime.8
The premise of Tompkins’ argument is that the four-year period set forth in
(b) The premise of Tompkins’ argument is flawed. Contrary to his claim, the seven-year period established by
We therefore conclude that because the seven-year period provided for by
(c) We now must apply the time limitations set forth in
Based on the stipulated facts, some of the indicted acts of child molestation could have occurred when the victim was 13 years old. The stipulated facts establish that the victim turned 14 on January 14, 1996, so she was only 13 years old for any acts of child molestation that occurred between the first date alleged in the indictment — July 1, 1995 — and her fourteenth birthday. Because the victim would have been under fourteen when those acts of molestation occurred, the seven-year statute of limitation applies to those crimes.13
Furthermore, as Tompkins concedes, the indictment expressly avers that the victim was under the age of 16, thereby invoking the statute of limitation tolling provision set forth in
“[I]n determining whether a crime is prosecuted within the limitation period, the date of prosecution is the date the indictment was filed.”15 The indictment here was filed on July 3, 2002. It is therefore well within the not-yet-expired limitations period, and the trial court correctly ruled that the prosecution for acts of child molestation occurring when the victim was 13 is not barred by the statute of limitation.16
However, any of the acts of molestation that occurred between the child‘s fourteenth birthday and the last date alleged in the indictment, January 14, 1997, would not fall under the seven-year time limit for felonies committed against victims under fourteen. Rather, any such offenses committed when the victim was fourteen and fifteen would instead be governed by the four-year statute of limitation.17 Even with the running of that time period being tolled until the child turned sixteen, the four-year period expired on January 14, 2002. Since the indictment was returned almost six months after that expiration date, the state is barred by the statute of limitation from prosecuting Tompkins for any acts of molestation that occurred when the child was fourteen and fifteen. The trial court erred in failing to find that such a prosecution is prohibited.
The court‘s error allowed the state to present stipulated evidence that was overly broad in that it covered all acts of molestation occurring when the victim was 13 to 15 years old. For the reasons discussed above, the state should have been limited to presenting evidence only of molestation that took place within the seven-year statute of limitation applicable to the crimes alleged to have occurred when the victim was thirteen.18 But since the state‘s evidence was not properly limited, we cannot determine with any degree of certainty whether or not the trial court‘s final judgment was based on appropriate findings of fact.
Given the stipulated evidence presented by the state, the trial court would have been authorized to make one of the following three findings: (1) that all the acts of molestation occurred when the victim was thirteen, or (2) that some acts of molestation occurred when the victim was thirteen and some occurred when she was at least fourteen, or (3) that all the acts occurred when she was fourteen and fif-
Accordingly, we hereby vacate Tompkins’ convictions on two counts of child molestation and remand the case for a new trial on those counts. We direct the trial court to limit the prosecution to offenses that are alleged to have taken place when the victim was thirteen years old and are thus within the seven-year statute of limitation. With that limitation in mind, we further note that since the exact dates of the offenses are not material allegations in the indictment, those dates may be proved as of any time within the applicable statute of limitation.19
Judgment vacated and case remanded with direction. Smith, C. J., Andrews, P. J., Eldridge, Miller, Ellington, Mikell and Adams, JJ., concur. Blackburn, P. J., Ruffin, P. J., Barnes and Phipps, JJ., concur specially.
RUFFIN, Presiding Judge, concurring specially.
I agree with the result reached by the majority, as well as the reasoning in Division 2. However, because I cannot agree with the majority‘s analysis in Division 1, I concur specially.
In Division 1, the majority concludes that, although the State failed to prove venue in this case, such failure does not require reversal because Tompkins never contested venue at the stipulated bench trial. According to the majority, Tompkins waived any right to challenge on appeal the sufficiency of the evidence supporting venue. I disagree.
Tompkins pled not guilty to the two child molestation charges of which he was later convicted. This “act of pleading not guilty to an indictment is considered by law to be an irrefutable challenge to all the allegations set forth therein, including those allegations pertaining to venue.”20 Like all other material allegations in the indictment, venue must be proven beyond a reasonable doubt.21
The majority asserts that Tompkins only contested below the timeliness of the charges and the victim‘s veracity, thus leading the prosecution and the court to believe that he did not challenge venue. In my opinion, however, Tompkins’ challenge to the State‘s evidence extended to all material elements of the crimes charged, including venue. The cases relied upon by the majority, Sanders v. State23 and Scott v. State,24 do not require a different result. In Sanders, we concluded that the defendant waived any challenge to venue on appeal by stipulating at the trial level that all elements of the offense, including venue, had been proven.25 We similarly determined in Scott that, with the exception of an issue regarding the suppression of certain evidence, defense counsel had led the trial court to believe that the defense conceded the State had met its burden of proof.26 Under those circumstances, the defendant waived his challenge to the sufficiency of the evidence.27
Without dispute, Tompkins focused below on his statute of limitation defense and the credibility of witnesses. Venue, however, remained a key element of the State‘s case. And although a defendant “may expressly authorize factual stipulations that will obviate the need for proof,”28 I cannot conclude that a valid stipulation existed as to venue. Unlike in Sanders and Scott, Tompkins did not
I believe that the State‘s failure to prove venue requires reversal in this case. The failure to properly establish venue, however, does not prevent a retrial.30 As noted by our Supreme Court, if we reverse a criminal conviction “because of an evidentiary insufficiency concerning the procedural propriety of laying venue within a particular forum, and not because of an evidentiary insufficiency concerning the accused‘s guilt, retrial is not barred by the Double Jeopardy Clause.”31 Accordingly, although I disagree with Division 1 of the opinion, I agree with the majority‘s ultimate conclusion that this case must be remanded for a new trial.
I am authorized to state that Presiding Judge Blackburn, Judge Barnes and Judge Phipps join in this special concurrence.
DECIDED FEBRUARY 23, 2004
Brian Steel, Stephen B. Murrin, Michael R. Duponte, for appellant.
Patrick H. Head, District Attorney, Amelia G. Pray, Lori A. Zamberletti, Assistant District Attorneys, for appellee.