Improper Sexual Contact Conviction Against Middle School Track Coach Reversed

In Edge v. State, the Georgia Court of Appeals reversed the conviction for improper sexual contact by employee or agent in the first degree, holding that the evidence failed to establish that the defendant engaged in sexually explicit conduct with the student. His remaining conviction for felony sexual battery was affirmed.

Factual Background

The defendant was a middle school track coach and paraprofessional. He was accused of touching the inner thigh of a 12-year-old girl on the track team on the bus ride back from a meet. Three videos from the bus showed him sitting next to her, placing his hand on her thighs, and rubbing them.

The girl testified that on another occasion, the defendant touched her buttocks at practice. She also testified that he had invited her to go back to his house with him to do “grown up things” in his bed.

Another member of the track team testified that when she was 12 years old, the defendant did similar things to her – touching her leg, thigh, and waist – and making her feel uncomfortable.

Indictment and Trial

The defendant was indicted for the offenses of child molestation, sexual battery against a child under 16, improper sexual contact by an employee or agent in the first degree (by virtue of his employment at the school), and criminal attempt to commit a felony (based on him inviting her to go back to his house with him).

However, the jury only convicted him of the sexual battery and sexual contact by employee charges.

Following the trial, the defendant filed a motion in arrest of judgment, arguing that there was no evidence that he committed “sexually explicit conduct” which is an essential element of sexual contact by an employee or agent in the first degree.

The trial court denied the motion and sentenced him to serve five years in prison, followed by fifteen years on probation.

Court of Appeals’ Reversal

The offense of improper sexual contact by employee or agent in the first degree requires that the employee or agent engage in “sexually explicit conduct” with someone enrolled as a student at the school where the employee or agent works.

“Sexually explicit conduct” is defined in pertinent part as “[p]hysical contact in an act of apparent sexual stimulation or gratification with any person’s unclothed genitals, pubic area, or buttocks, or with a female’s nude breasts.”

While the contact with the girl’s buttocks clearly occurred over the clothes, the State argued that the contact with the girl’s inner thigh constituted her “pubic area” for purposes of the statute.

The Court of Appeals rejected this argument, reasoning that if the legislature intended to include contact with the unclothed upper or inner thigh within the definition of “sexually explicit conduct” it would have done so.

Therefore, the Court concluded that there was no evidence that the defendant committed the offense of improper sexual contact by an employee in the first degree and it reversed his conviction and sentence for that charge.

The Court noted that the offense of improper sexual contact by employee in the second degree only requires evidence of contact with the inner thigh or (clothed) buttocks as was established at the defendant’s trial. However, the State never charged the defendant with that offense.

The Court held that as a result of its finding that there was insufficient evidence to convict the defendant of improper sexual contact by employee in the first degree, Georgia’s procedural double jeopardy provisions would bar a subsequent prosecution on that charge as well as any lesser-included offense – including improper sexual contact by employee in the second degree.

As a result, only the defendant’s conviction and sentence for sexual battery against a child under 16 will remain intact.