Court Reverses Demurrer Ruling Setting up a Critical Question for the Jury at Trial

In Besong v. State, the Georgia Court of Appeals held that the “Romeo and Juliet” misdemeanor provision in the aggravated child molestation statute does not apply if the offense involves an alleged injury to the child.

Background

In Georgia, the offense of aggravated child molestation is committed when a person engages in an act of child molestation that involves sodomy or results in an injury to the child. It carries a mandatory minimum 25-year prison sentence with no parole. The maximum sentence is life in prison. The statute has a Romeo and Juliet provision that allows for misdemeanor punishment if the offense involves an act of sodomy between teenagers who are no more than four years apart in age.

The defendant, a teenager, was indicted for the offense of aggravated child molestation for engaging in sexual acts with another teenager who was under the age of 16. He filed a demurrer to the indictment contending that a felony prosecution was unconstitutional because the Georgia Supreme Court had previously held that the Romeo and Juliet misdemeanor provision “is mandatory in teenage sex cases.”

In the demurrer, the defense argued that there was ambiguity in the sentencing provisions as to whether the misdemeanor punishment applied in his case and, therefore, that the rule of lenity required the court to dismiss the felony charge.

The trial court agreed with the defense and held that the rule of lenity required the court to resolve the ambiguity in the defendant’s favor. So, for purposes of punishment, the trial court ruled that it would impose the misdemeanor punishment.

The State then appealed the ruling to the Court of Appeals.

The State’s Right to Appeal

First, the Court of Appeals had to determine whether the State even had the right to appeal. The trial court specifically held that it was not “dismissing” the charge in the indictment but merely finding that in the event of a conviction, the misdemeanor punishment would be imposed.

The trial court even stated in its order that its ruling should not be considered a “dismissal” or a “quashing” of that count of the indictment. This is significant because the State can only appeal a ruling that dismisses a count of an indictment or accusation.

However, the Court of Appeals interpreted the trial court’s ruling as essentially “amending” the charge in the indictment to a misdemeanor which effectively “was tantamount to a dismissal” of the felony charge.

The Court cited prior precedent that had held that the amending of an indictment by the court is the equivalent of a dismissal of that charge. Therefore, the Court concluded that the State was permitted to appeal this ruling.

Court of Appeals’ Reversal

Turning to the merits of the appeal, the State argued that the rule of lenity did not apply in this case because there was no ambiguity in the sentencing provisions of the aggravated child molestation statute. There are two ways to commit aggravated child molestation: by committing a sexual offense against a child that involved an act of sodomy, or one that resulted in an injury. According to the statute, the Romeo and Juliet provision applies only if the offense involves an act of sodomy.

However, the indictment in this case is what caused the ambiguity because the aggravated child molestation count accused the defendant of engaging in an act of sodomy that also caused an injury to the victim. So, the question was whether this injury allegation precluded application of the misdemeanor punishment. The language in the statute does not provide a clear answer.

The Court of Appeals concluded that the misdemeanor punishment cannot apply if the offense involved an injury to the child, even if it did occur during an act of sodomy. Therefore, it held that the trial court erred in granting the demurrer. So, the case can proceed to trial on the felony count.

What was not addressed by the appeals court was whether the question of this alleged injury would be submitted to the jury at trial. The reason being is that under the U.S. Supreme Court’s decision in Apprendi v. New Jersey, any fact that increases the maximum sentence must be submitted to the jury and proven beyond a reasonable doubt.

So, if by chance the jury finds that an act of sodomy was committed, but that it did not result in an injury to the child, then that finding could then be used to trigger the Romeo and Juliet provision of the statute.

With the Court of Appeals’ reversal, the case is now being remanded for trial. Hopefully, the defense will raise this argument with the trial court so that the jury can decide this very important question. The jury’s determination of this issue will dictate whether the defendant is subject to a mandatory minimum 25-year prison sentence or only misdemeanor punishment (which carries a maximum sentence of 12 months).