Webb v. StateWebb v. State
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Mаrcus Webb was indicted on three counts of child molestation. The State successfully moved the court to enter a judgment of nolle prosequi with respect to one count, and the jury acquitted Webb of one count. As for the remaining count, the jury’s verdict fоrm indicates that it found him guilty of both child molestation and sexual battery. The trial court sentenced Webb on the child molestation conviction to 30 years, with the first 15 years in confinement and the remainder on probation. In Case No. A04A0860, Webb appeals from thе denial of his motion for new trial, arguing that the evidence was insufficient to convict him and alternatively that he should have been sentenced on the lesser included offense of sexual battery. Because the evidence presented at trial аuthorized the jury to convict Webb, and because the trial court was authorized to merge the lesser conviction into the greater conviction, we find no merit in Webb’s arguments. We therefore affirm the judgment of conviction in Case No. A04A0860. In Case No. A04A0861, the Statе argues that the trial court erred in failing to sentence Webb to life without parole. Because the State failed to provide proper notice of its intent to seek imprisonment for life without parole, we disagree with the State’s contentions. But because the trial court improperly imposed a period of probation as part of Webb’s sentence, we vacate the sentence in Case No. A04A0861 and remand this case to the trial court for resentencing in accordаnce with our opinion.
Case No. A04A0860
1. Webb contends that the evidence was insufficient to support a conviction for either child molestation or sexual battery. Construing the evidence in support of the verdict, the victim testified that Webb, her cousin, began “touching my bаckside” when they were in her family’s kitchen. She stated that “[h]e was moving his hand around.” He did this twice in the kitchen and again in the bathroom. She was nine years old at the time of the incidents. Webb testified and denied any wrongdoing.
The State also presented similar transaction evidence showing that Webb had pled guilty to one count of child molestation in September 1993. The police officer who investigated that incident testified that the victim was a nine-year-old girl and that Webb had admitted that he touched the victim with his foot on her buttocks and thighs. This occurred on two occasions inside that victim’s home.
2. Webb argues that the verdicts of child molestation and sexual battery “were mutually exclusive and should not have been received by the trial court” and that under the principle of “lenity,” he should have been sentenced only on the lesser offense of sexual battery.
We first note that Webb did not objеct to the form of the verdict and therefore has waived any objection on the ground that the verdict “was inconsistent, confusing, or otherwise irregular. [Cits.]”
Ellison v. State,
A person commits the offense of child molestation if “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.”
Webb contends that he should have been sentenced on the lesser offense under the principle of “lenity.” This principle, discussed in
Dixon v. State,
In
Dixon,
the defendant was convicted of misdemeanor statutory rape and aggravated child molestation, a felony. Id. at 4. He wаs sentenced on the latter charge. On appeal, after considering the relationship between the child molestation statute,
Dixon
is not controlling in this case. Unlike the convictions in
Dixon,
the crimes for which Webb was convicted were both felonies. Differing “grades” of punishment
Case No. A04A0861
3. The State argues that the trial court was required to sentence Webb to life imprisonment without the chance of parole under
Webb concedes that the State “provide [d] proper and complete notice ... of its intention to seek recidivist treatment on October 5, 2001, well in advance of trial” and states that he “was aware that whatever confinement sentence he might receive from the trial court would be served in its entirety without parole, pursuant to
Upon a second or subsequent conviction of an offense of child molestation, the defendant shall be punished by imprisonment for not less thаn ten years nor more than 30 years or by imprisonment for life; provided, however, that prior to triad, a defendant shall be given notice, in writing, that the state intends to seek a punishment of life imprisonment.
(Emphasis supplied.)
The State’s notice of intent to seek life imprisonment was provided to Webb on April 17, 2002, one day before testimony began. Some time later on that same day, the prosecuting attorney sent defense counsel a letter via facsimile offering to withhold tender of Webb’s previous convictions if Webb would enter a guilty plea. Webb obviously rejected this offer and chose to exercise his right to a jury trial. Before testimony began on April 18, the State informed the court that if Webb were convicted of child molestation, the court would be required to sentencе him to life imprisonment without parole. As discussed above, Webb was convicted of child molestation and sexual battery, and the trial court correctly merged the lesser offense into the greater offense for sentencing purposes.
During the sentеncing hearing, the court focused on the timing of the State’s notice of intent to seek life imprisonment, noting that the State served this notice on Webb only after a jury had been selected. The court further noted that the State similarly waited until after jury seleсtion to offer to withdraw the former convictions, finding that “the letter clearly indicates that Mr. Webb needs to withdraw his desire to go to a jury trial or face a life sentence.” The court concluded that sentencing Webb to life imprisonment would be improper, given the State’s actions, stating that “sentencing prerogatives” would be placed
in the State’s power when it decided whether it was going to choose to advance a life sentence without parole or not by serving notice. I don’t beliеve the State can do what the Court itself cannot do. That is punish a man for going to jury trial. But by your letter, after the selection of the jury, it appears clear that that is what he is being punished for on his desire to go to jury trial, and the Court further notes by the jury returning a not guilty verdict on one of the counts that his seeking to go to jury trial was not itself frivolous.
The court then “set aside . . . the State’s notice of seeking a life sentence as being improper use of the State’s discretion” and sentenced Webb to 30 years, with the first 15 years to be served in prison and the remainder on probation.
Atrial court cannot impose an excessive sentence simply because a defendant has chosen to exercise his or her constitutional right to a jury trial. Uniform Superior Court Rule 33.6 (B);
Johnson v. State,
State v. Jones,
Our conclusion that life imprisonment was not authorized does not end our inquiry, however. As discussed above, the trial court probated a portion of Webb’s sentence. This was Webb’s second child molestation conviction, and
Judgment of conviction affirmed in Case No. A04A0860. Sentence vacated and case remanded in Case No. A04A0861.