In State v. Crossen, the Georgia Court of Appeals affirmed the defendant’s sentence for sexual exploitation of a child and other crimes related to his relationship with a sixteen year-old girl.
The Court held that the trial court was authorized to deviate from the mandatory minimum sentence requirements because the State failed to carry its burden to prove that the defendant was not eligible for the deviation.
The record showed that the defendant was involved in a relationship with a 16 year-old girl. The defendant and the girl exchanged sexually explicit pictures and on one occasion engaged in consensual oral sex in a public park. The defendant was indicted on six counts of sexual exploitation of a child, one count of sodomy, six counts of misdemeanor dissemination of pornography to a minor, and one count of interference with custody. He pleaded guilty to all charges. At sentencing, the trial court held that while it could not deviate from the mandatory minimum on the sodomy count (because the offense involved the transportation of the victim), it was permitted to deviate on the sexual exploitation counts.
Under O.C.G.A. § 17-10-6.2(b), a defendant convicted of certain sexual offenses must be sentenced to at least the minimum term of imprisonment applicable to the offense, plus an additional probated sentence of at least a year. Under subsection (c), the trial court can deviate from the mandatory minimum if the defendant had no prior conviction for a sexual offense, did not use a deadly weapon during the offense, there was no evidence of a relevant similar transaction, the victim did not suffer physical harm during the crime, the offense did not involve the transportation of the victim, and the victim was not physically restrained during the offense.
The statute does not state which party should carry the burden of proof as to the factors that would permit a deviation from the mandatory minimum. The Court held that this omission rendered the statute ambiguous.
The Court of Appeals noted that “[p]enal statutes are always construed strictly against the State and liberally in favor of human liberty.” Therefore, where a criminal statute is ambiguous, it should be construed in favor of the defendant. In this case, the ambiguity as to the burden of proof was construed in favor of the defendant, and the State had the burden to prove “the existence of any statutory factors that would prohibit the court from deviating downward on Crossen’s sentence.”
The Court noted that the State failed to introduce any evidence about the presence of statutory factors that would prevent a deviation on the sexual exploitation counts. Thus, the trial court was within its discretion to deviate from the mandatory minimum and order that the defendant receive a lesser sentence.
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