In Yelverton v. State, a divided Georgia Supreme Court reversed the denial of the defendant’s petition for removal from the sex offender registry holding that the superior court misconstrued the law concerning his eligibility for removal.
In 1991, the defendant was convicted of child molestation and aggravated child molestation following allegations that he fondled and engaged in oral sex with his daughter. The defendant was sentenced to serve 20 years in prison. In 2002, he was paroled and classified as a Level I (low risk) sexual offender.
In 2015, he filed a petition for removal from the registry in Tift County Superior Court. The superior court denied his petition on the basis that evidence of a similar transaction was admitted at his criminal trial which rendered the defendant ineligible for removal from the registry.
At the criminal trial, the State presented evidence of a similar transaction involving allegations made by an adult woman to show his “proclivity toward non-consensual sexual conduct.” The woman testified that she lived in the defendant’s house for about a year and that he attempted to have sexual relations with her. She testified that she once awoke at night because the defendant was touching her vagina but that he stopped when she told him no. The defendant denied that she was asleep and asserted that the encounter was consensual.
Pursuant to the statute, a defendant is not eligible for removal unless his case meets all of the requirements set out in O.C.G.A. § 17-10-6.2 (c)(1)(C). One of those requirements is that “The court has not found evidence of a relevant similar transaction.”
The defendant argued that a decision to admit evidence of a similar transaction against the accused does not necessarily require a finding that the relevant similar transaction did, in fact, occur. For that reason, a court considering a petition for release must decide for itself whether there is evidence of a relevant similar transaction.
The Supreme Court agreed, holding that, in regard to the above statute, “relevant similar transaction” is reasonably understood to mean an independent but similar sexual offense that shows the defendant to be a repeat sexual offender and therefore at substantial risk for perpetrating future offenses.
The Court noted that at the defendant’s trial, the trial court did not have to find that the defendant touched the woman without consent, which he denied, to admit the evidence. The State merely had to make a prima facie showing that it occurred. It is unknown whether the jury actually found that the alleged similar transaction occurred.
As a result, the Court held that the superior court erred in failing to determine for itself whether the evidence established the commission of “a relevant similar transaction.” The denial of the petition was reversed and the case was remanded for a new hearing.
Justice Melton dissented along with Chief Justice Thompson. The dissent asserted that the majority’s interpretation was contrary to the plain meaning of the statute. They argued that where the court finds that evidence of a relevant similar transaction was admitted at the defendant’s trial, the defendant may not be considered for removal from the registry. The dissent noted that this reasoning was in line with legislative intent to ensure that those who have engaged in prohibited conduct in the past cannot take advantage of the opportunity to be removed from the sex offender registration requirements.