Widner v. StateWidner v. State
- Reporters:
- , , ,
- Before:
- Melton
Viewed in the light most favorable to the verdict, the record shows that, on December 29, 2002, Joshua Ray Widner, who was eighteen years old at the time, admittedly engaged in acts of oral sex and sexual intercourse with a fourteen-year-old girl. Based on this conduct, Widner was convicted of two counts of aggravated child molestation and one count of statutory rape. Widner now appeals, contending, among other things, that his mandatory sentence of ten years without the possibility of parole for aggravated child molestation based on an act of sodomy constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and the comparable Georgia constitutional provision, Art. I, Sec. I, Par. XVII. 1 For the reasons set forth below, we affirm.
Punishment for a crime will be deemed to be unconstitutionally excessive if it “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Cox v. State, 241 Ga. 154, 155 (244 SE2d 1) (1978). “[A] sentence which is not otherwise cruel and unusual does not become so simply because it is ‘mandatory.’ [Cit.]” Ortiz v. State, 266 Ga. 752, 753 (2) (470 SE2d 874) (1996). “Legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment. [Cit.] As a result, the issue of punishment is generally one for the legislative branch, and legislative discretion is deferred to unless the sentence imposed shocks the conscience. [Cit.]” Johnson v. State, 276 Ga. 57, 62 (5) (573 SE2d 362) (2002).
The facts of this case show that Widner, a legal adult, pursued the victim and got her to agree to have sex with him and another male friend at the same time, despite the fact that the victim’s parents previously told him that she was only 14 years old. Based on these facts and applying the requisite deference to the legislative branch’s authority to impose punishment based on the mores of society at the time of the crime, Widner’s sentence was appropriate under
Widner further argues that his sentence is unconstitutional because child molestation involving an act of sodomy receives greater punishment than child molestation involving intercourse. We have previously rejected this argument in
Odett v. State,
273 Ga. 353 (2) (541 SE2d 29) (2001), “[bjecause the General Assembly could reasonably conclude that the psychological well-being of minors is more damaged by acts of sodomy than by acts of intercourse.” Id. at 355. Widner also contends that, based on our decision in
Powell v. State,
270 Ga. 327 (510 SE2d 18) (1998), his sentence of ten years violates his constitutional right of privacy.
“Powell[,
however,] did not hold that the right to privacy protects sodomy generally. See
Howard v. State,
272 Ga. 242, 243 (1) (527 SE2d 194) (2000). [Widner’s] sexual
2. We note that, effective July 1, 2006, the General Assembly has revised
[M]aking [a] lesser penalty applicable to offenses committed prior to the enactment of the legislation [creating the lesser penalty] is contrary to the judicial interpretation of the [laws] of this State under which the penalty for a criminal offense relates only to those offenses committed when and after such legislation becomes effective.
Barton v. State, 81 Ga. App. 810, 814 (3) (60 SE2d 173) (1950).
3. Widner contends the trial court erred by giving improper instructions to the jury after deliberations had begun which coerced an otherwise hung jury into reaching a unanimous verdict. The record shows that, after being informed by the jury foreman that it could not reach a unanimous verdict on the aggravated child molestation counts of the indictment, the trial court instructed the jury that, if they could not reach a verdict, it “would have to declare a mistrial on those two counts and it would probably have to be retried . . . before another jury.” The trial court further stated that “this jury is well qualified to resolve [the case] as another jury would later down the road.”
Widner contends that these instructions violate our holding in
Burchette v. State,
278 Ga. 1 (596 SE2d 162) (2004).
In Burchette,
we considered the following portion of the pattern
Allen
charge: “[This] case must be decided by some jury selected in the same manner this jury was selected and there is no reason to think a jury better qualified than you would ever be chosen.” We concluded that this portion of the charge was inaccurate and “should no longer be given by trial courts.” Id. The trial in the present case, however, occurred prior to the date of our opinion in
Burchette,
which is prospective in its application, and therefore does not control here. The question
4. Finally, Widner contends that the visiting judge who presided over his case had not been properly designated to do so pursuant to
Judgment affirmed.
All the Justices concur.
Notes
Widner does not challenge his conviction for statutory rape.
Subsection (f) of this Code section provides: “The written designation shall identify the court in need of assistance, the county where located, the time period covered, the specified case or cases for which assistance is sought if applicable, and the reason that assistance is needed.”