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GA Court of Appeals Reverses Statutory Rape Conviction

February 6, 2013

In Agan v. State, the Georgia Court of Appeals held that the lower court’s failure to instruct jurors that a statutory rape victim’s testimony must be corroborated was “plain error,” which required a reversal of the defendant’s conviction.

The court also vacated the defendant’s sentence on one count of child molestation and remanded for resentencing because the trial court merged that sentence into the defendant’s sentence for the statutory rape charge.

Gregory Agan appealed his statutory rape conviction arguing that the trial court erred in its instruction to the jury on the elements of the offense. Under O.C.G.A. § 16-6-3(a), a person commits the offense of statutory rape when he or she has sexual intercourse with a person under the age of 16 “provided that no conviction shall be had for this offense on the unsupported testimony of the victim.” Courts have held that this requires the prosecution to produce some amount of independent evidence that corroborates the victim’s allegation.

When defining statutory rape for the jury, the judge in Agan’s case did not include an explanation of the corroboration requirement. When the defense attorney objected to the instruction, the State agreed that the correct charge included a reference to corroboration. Although the judge did recall the jury and announce an alteration to the instruction, he still did not address the corroboration requirement. Neither the State nor the defense attorney objected to the modified instruction despite the omission.

The Georgia Court of Appeals found that the trial court’s failure to instruct the jury on the corroboration element was harmful as a matter of law, requiring a reversal of Agan’s conviction. Since his defense attorney did not object to the second instruction, the Court had to find that the omission constituted “plain error.” To find plain error, the court must find that (1) there was an error or defect that has not been intentionally relinquished or abandoned, (2) the legal error must be clear or obvious, rather than subject to reasonable dispute, (3) the error must have affected the appellant’s substantial rights, meaning that it affected the outcome of the trial, and (4) the error must have seriously affected the fairness of the defendant’s trial.

Applying a plain error analysis, the court found that the erroneous instruction was significant enough to satisfy each of the above factors. Accordingly, the court reversed Agan’s statutory rape conviction, vacated his sentence for child molestation—which had been merged into the statutory rape sentence—and remanded the case for resentencing.

It is important to note that Agan won his appeal despite the fact that his defense attorney did not object a second time to the flawed jury instruction. Fortunately, the court found that the omission constituted “plain error.” However, in many cases, the plain error test can be difficult to meet. Thus, it is always the better practice for defense counsel to object each and every time to the erroneous instructions.

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