In the second appearance of this case on appeal, the Georgia Court of Appeals held in Mosby v. State that the broad range of dates used in the indictment did not amount to reversible error.
This was after the Court had previously reversed the trial court’s denial of the appellant’s special demurrer which challenged the use of such a broad range of dates in his first indictment. Additionally, the Court found no significant reversible errors, but did conclude that the conviction for sexual battery should be merged and the aggravated child molestation conviction be vacated.
Following his first appeal, the State re-indicted the case and the appellant was convicted of multiple sex offenses against his minor step-children that were alleged to have taken place over the course of several years.
At the center of his appeal was his contention that the trial court erred in overruling his special demurrer that the State should have provided a narrower range of dates in this indictment with respect to the alleged crimes. Specifically, the appellant argued that the range of dates for these alleged crimes should not have included June 2009 because he was not living with the family at that time.
His argument is based on State v. Layman, which states, “Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer.”
However, under O’Rourke v. State, the State may present evidence that suggests a crime took place between two particular dates, especially if the victim was a child and is incapable of precisely determining the date that the alleged offense occurred.
In this case, witness testimony from the alleged victim, who was approximately 15 at the time of the incident, indicated the act in question was committed against her towards the end of the school year in 2009. The witness acknowledged the school year ended in May 2009, but she was unsure of the exact date.
At trial, the appellant stipulated to the witness’s accounting of the dates and did not present any defense suggesting that he did not reside in the family home at the time of several of the alleged offenses. As a result, the appeals court affirmed the trial court’s overruling of the special demurrer and found no reversible error.
The appellant went on to suggest that the indictment was not returned in open court, or “a place where court is being held open to the public with the judge and clerk present,” State v. Brown. The appeals court reviewed this plea in abatement, but concluded that the indictment was actually “received in open court.”
Specifically, the deputy clerk who signed the indictment verified her signature and the indictment itself states that it was “[r]eceived in open court,” which indicates that the proper procedure was followed. Since the appellant failed to present any evidence to the contrary, the appeals court affirmed the trial court’s denial of his plea in abatement on this issue.
The appellant’s next challenge suggested that if the evidence in question was sufficient to support his sexual battery conviction, that offense (Count 1) should have been merged with the child molestation charge (Count 2) since they were based on the same act.
After a review of the record, the appeals court determined that under OCGA § 16-6-22.1 (b), the actions described at trial constituted the offense of sexual battery, which occurs when a person intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.”
The Court also confirmed that the indictment charged both child molestation and sexual battery and based the separate counts in the indictment on the same act. Therefore, they should have been merged for sentencing. Ultimately, the Court’s finding was in the appellant’s favor, vacating his sexual battery conviction and sentence.
In the appellant’s first appeal, the Court reversed the denial of his motion to dismiss and plea in bar, finding that several of the counts in the indictment were barred by the applicable statutes of limitation. In this appeal, he argued that one of the counts in the indictment was an unlawful enlargement of one of those dismissed charges and that the State changed the dates of the offense in an effort to circumvent the statute of limitations.
However, after reviewing the evidence presented in the trial court, the Court held that the charge in Count 14 alleged a different crime than the count that was dismissed in the first indictment. The Court found that these were different crimes, committed under different circumstances, and at different times. As such, the Court found no merit to the appellant’s claim.
Another issue raised had to do with the trial court incorrectly overruling an initial demurrer to Count 6 of the indictment which charged the offense of aggravated child molestation involving an act of sodomy (OCGA § 16-6-4 (c)) but stated that the offense involved the defendant having sexual intercourse with the child.
The Court found in the appellant’s favor because “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.”
Since sexual intercourse is not an act of sodomy (which is “any sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a)(1)), it does not constitute the crime of aggravated child molestation. Accordingly, this conviction was also reversed and the sentence vacated.
Finally, the appellant argued that the trial court erred by overruling another special demurrer claiming that the indictment was imperfect in form because he was incarcerated for periods of time in which he was alleged to have committed several of the offenses. Therefore, the State should have narrowed the dates in those counts accordingly.
Upon review, the Court conceded that the State could have narrowed the dates in the indictment since there was evidence that the appellant was incarcerated for at least a few of the months included in the time frame in question. However, the Court found that there is no evidence that this error resulted in harm or affected whether his guilt could still be proven beyond a reasonable doubt.
It was confirmed at trial that he was, in fact, incarcerated for some of the timeframe in the indictment. However, the victims testified that the molestation occurred within the date range alleged, but not while he was incarcerated. There was no additional evidence presented that the appellant was absent from the family residence during the remaining relevant time periods. So, the appeals court found that any defect in the indictment was harmless and did not warrant reversal.
In the end, the Court affirmed several of the appellant’s convictions which means that the majority of his sentence will remain intact. However, this appeal involved a number of interesting issues concerning defects in indictments that can be challenged with successful pretrial demurrers. These are issues that defense attorneys should be well-versed in when defending sex offense allegations so that the right motions can be filed prior to trial.
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