In Mosby v. State, the Georgia Court of Appeals reversed the trial court’s denial of the defendant’s special demurrer.
The Defendant claimed that the prosecution erred when it failed to present evidence to show why it did not identify a specific date on which each indicted offense occurred, and the Court of Appeals agreed.
Michael Mosby was indicted in the Superior Court of Gwinnett County on multiple counts of child molestation as well as other sexual offenses against four of his children. The prosecution failed to specify particular dates in the indictment, referring only to general time periods between 2001 and 2005 where Mosby allegedly committed incest, child molestation, aggravated child molestation, aggravated battery, and enticing a child. Only one count of the indictment charged Mosby with committing an offense on a specific date. Mosby filed a special demurrer, arguing that he required more specific dates than those contained in the indictment to properly prepare his defense. He contended that he did not reside with his children during the time he allegedly sexually abused them, and needed a narrower time frame from the prosecution in order to present that defense. The trial court rejected his arguments and denied the demurrer as well his motion to dismiss the indictment.
In general, an indictment that does not specify the date of an alleged offense is subject to a special demurrer. However, especially in cases involving children, the prosecution can allege that the exact date of the offense is not known but that it occurred within a particular period of time. To withstand the demurrer, the State much show that based on the evidence in its possession, it is unable to provide a more narrow range of dates than those set forth in the indictment.
In Mosby’s case, both sides had an opportunity to present evidence on this issue at an evidentiary hearing. At the hearing, the prosecution simply relied on the generalization that “sometimes” child victims have a difficult time remembering exact dates. The Court of Appeals found this explanation to be insufficient in that it failed to provide an adequate, particularized rationale for utilizing the range of dates set out in the indictment.
Mosby also filed a motion to dismiss arguing that several of the offenses were barred by the statute of limitations. The Court of Appeals found that the trial court correctly ruled that the 7-year statute of limitations for child molestation charges involving a 14 year-old child did not begin to run until she turned 16—citing the fact that the indictment properly invoked the tolling provision for offenses involving children under the age of 16. However, the Court found that the prosecution failed to invoke the tolling provision on the counts of aggravated child molestation and incest by neglecting to specify in those counts of the indictment that the victim was under the age of 16. Any exception to the statute of limitations, including tolling provisions, must be pleaded in each count of the indictment. The Court also held that the State failed to prosecute Mosby for aggravated sexual battery within the applicable statute of limitations as that offense is not subject to the tolling provisions.
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