Adams v. the State.

• Decision Date: 07 March 2011
• Docket Number: No. S10A1563.,S10A1563.
• Citation: 288 Ga. 695,707 S.E.2d 359
• Parties: ADAMSv.The STATE.
• Court: Georgia Supreme Court

288 Ga. 695

707 S.E.2d 359

11 FCDR 208

ADAMS

v.The STATE.

No. S10A1563.

Supreme Court of Georgia.

Feb. 7, 2011.Reconsideration Denied March 7, 2011.

Rafe Banks, III, Daisy Drury Weeks, Cumming, for appellant.Lee Darragh, District Attorney, Theodore G. Cassert, Assistant District Attorney, for appellee.CARLEY, Presiding Justice.

On June 12, 2008, Mitchell Lee Adams was indicted for child molestation and aggravated child molestation occurring on and between May 1, 2007 and March 10, 2008, “the State being unable to narrow the range of dates or charge a specific date as the crime occurred during the period of time charged and the victim is a young child unable to state a specific date....” Prior to trial, the trial court denied a challenge by Adams to the constitutionality of the mandatory minimum sentence for aggravated child molestation provided in the 2006 amendment to OCGA § 16–6–4(d)(1) as applied to him. During a jury trial, Adams moved for a directed verdict, arguing that the State failed to prove that the crimes occurred during the period of time set forth in the indictment. The trial court ruled that the dates alleged in the indictment were not essential averments, and subsequently instructed the jury that any of the charged offenses could be proven as of any time within the applicable seven-year statute of limitations.

Adams was found guilty of both offenses with which he was charged. Several months later, the trial court entered judgments of conviction on the guilty verdicts and sentenced Adams to life imprisonment for aggravated child molestation, with 25 years to be served and the remainder of the life sentence on probation, and to a 20–year term for child molestation, with five years to be served and the remainder on probation. Adams appealed to the Court of Appeals. Because the constitutionality of the current version of OCGA § 16–6–4(d)(1) is raised on appeal and has not yet been considered by this Court, the Court of Appeals transferred the case to this Court pursuant to our exclusive jurisdiction over “all cases in which the constitutionality of a law ... has been drawn in question....” See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II(1).

1. On the day that Adams was sentenced, he filed a motion to dismiss the indictment or, in the alternative, for directed verdict, which the trial court orally denied. In that motion, he asserted for the first time that, as a result of the trial court's ruling that the alleged dates were not essential averments, the indictment permitted prosecution for offenses occurring prior to his thirteenth birthday on August 4, 2005, and that the State failed to prove that the crimes did not occur before that date. Adams contends on appeal that the time period for which he was convicted includes a period in which, because of his age, he could not be found criminally responsible.

“A person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime.” OCGA § 16–3–1. Under prior law, a person under the age of ten years was incapable of committing any criminal offense. Ford v. State, 100 Ga. 63(1), 25 S.E. 845 (1896). Such a child was “conclusively presumed not to be possessed of sufficient capacity to commit crime. [Cit.]” Curry v. State, 87 Ga.App. 451, 452(1), 74 S.E.2d 249 (1953). However, with the enactment of OCGA § 16–3–1 in 1968, the General Assembly “eliminate[d] the conclusive presumption of incapacity to commit crime below the age of 10 years ... and lower[ed] the rebuttable presumption of capacity to commit crime from 14 years to 13 years.” Committee Notes to § 26–701 of the 1968 Criminal Code.

OCGA § 16–3–1 “does not provide that a person under 13 years of age is incapable of performing an act which is designated a crime under the laws of Georgia....” (Emphasis in original.) K.M.S. v. State of Ga., 129 Ga.App. 683, 685, 200 S.E.2d 916 (1973) (citing the Committee Notes). It provides neither a constitutional nor an unwaivable proscription on the prosecution of persons under 13 years old. Compare Roper v. Simmons, 543 U.S. 551,(125 S.Ct. 1183, 161 L.Ed.2d 1) (2005) (relied upon by the special concurrence, but providing a constitutional and categorical proscription on the execution of minors). OCGA § 16–3–1 should not be confused with OCGA § 51–11–6, which this Court has construed to provide “ immunity” from a tort action. Barrett v. Carter, 248 Ga. 389(1), 283 S.E.2d 609 (1981). There is no authority that OCGA § 16–3–1 provides immunity from criminal prosecution. To the contrary, that statute “ ‘simply raises a defense for (children under 13) because of the social desirability of protecting those no more than 12 years of age from the consequences of criminal guilt.’ [Cit.]” Luke v. State, 222 Ga.App. 203, 205(1)(b), 474 S.E.2d 49 (1996), overruled on other grounds, Brewer v. State, 271 Ga. 605, 607, 523 S.E.2d 18 (1999). See also K.M.S. v. State of Ga., supra (taking this language from the Committee Notes).

Indeed, OCGA § 16–3–1 sets forth an affirmative defense, because such a defense admits the doing of the act charged, but seeks to justify, excuse, or mitigate it. Chandle v. State, 230 Ga. 574, 576(3), 198 S.E.2d 289 (1973); Agnor's Ga. Evidence § 17:7, fn. 9 (4th ed.). The definition of “affirmative defenses” cannot be limited to those which preclude criminal intent, by relying on authority which deals only with those affirmative defenses which are specifically identified as such and listed in OCGA §§ 16–3–20 through 16–3–28. Hicks v. State, 287 Ga. 260, 261–262(2), 695 S.E.2d 195 (2010); Brower v. State, 298 Ga.App. 699, 702(1), 680 S.E.2d 859 (2009) (quoted in Hicks ). Other defenses, including age and the statute of limitations, do not preclude criminal intent, “are listed in other statutes and may be considered affirmative defenses as well. [Cits.]” Agnor's, supra. See also Moss v. State, 220 Ga.App. 150, 469 S.E.2d 325 (1996) (limitations); Gregory C. Lisby, Resolving the Hazelwood Conundrum: The First Amendment Rights of College Students in Kincaid v. Gibson and Beyond, 7 Comm. L. & Pol'y 129, 131, fn. 13 (2002) (“Infancy ... has long been a widely accepted affirmative defense in ... criminal law. [Cits.]”). With respect to any affirmative defense, “unless the state's evidence raises the issue invoking the alleged defense, the defendant must present evidence thereon to raise the issue.” OCGA § 16–1–3(1).

“ ‘The responsibility of producing evidence of an affirmative defense and the burden of persuasion by proof beyond a reasonable doubt are two distinct and separate concepts. The first is placed squarely on the defendant unless the state's evidence raised the issue.’ (Cits.)” [Cits.]

Cheesman v. State, 230 Ga.App. 525, 528(6), 497 S.E.2d 40 (1998). Thus, contrary to the special concurrence, even if pre-trial documents which were never admitted into evidence refer to Adams' date of birth, some evidence of his age at the time of the crimes nevertheless had to be presented at the trial both to raise the issue in OCGA § 16–3–1 and to supply proof regarding that affirmative defense. However, “[t]here was no evidence at the trial showing the age of the accused....” Broadnax v. State, 100 Ga. 62, 25 S.E. 844 (1896). Adams' appellate brief cites pre-trial record references to his date of birth, but not any testimony or other evidence thereof in the transcript, and our own review has located no such evidence. Therefore, Adams “has not shown that either he or the State raised the issue as to [his age at the time] of the crimes.” Cheesman v. State, supra at 529(6), 497 S.E.2d 40.

Adams could perhaps have moved for a new trial based upon newly discovered evidence. See Ford v. State, supra at 64, 25 S.E. 845; Broadnax v. State, supra. But see Clemmons v. State, 66 Ga.App. 16, 18–20(3), 16 S.E.2d 883 (1941) (motion for new trial not sufficient to raise question of age because former statute provided only a rebuttable presumption that the 13–year–old defendant was incapable of committing a crime). However, the requirements of such a motion were not met by the only post-verdict motion which Adams did file. That motion did not include any evidence of Adams' date of birth or account for its absence, and the record shows that, prior to trial, Adams and his attorney already believed that Adams' date of birth was August 4, 1992. See Hester v. State, 282 Ga. 239, 241–242(3), 647 S.E.2d 60 (2007); Timberlake v. State, 246 Ga. 488, 491(1), 271 S.E.2d 792 (1980); Broadnax v. State, supra; Hester v. State, 219 Ga.App. 256, 257(1), 465 S.E.2d 288 (1995). Compare Ford v. State, supra (affidavits presented newly discovered evidence that defendant was under ten years old and therefore incapable of committing any criminal offense under former statute).

Neither an allegation nor proof of Adams' age was necessary to show his capacity for committing the crimes charged. Clardy v. State, 87 Ga.App. 633, 638(2), 75 S.E.2d 208 (1953). Construed most strongly in support of the verdicts, the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Adams was guilty of the crimes of child molestation and aggravated child molestation as charged in the indictment.

2. Adams further contends that the trial court erred in denying the motion for directed verdict which defense counsel made during trial on the ground that the State failed to prove that the offenses occurred within the dates alleged in the indictment.

Where, as here, the State alleges a certain range of dates in an indictment and does not specifically allege that those dates are material, the State is not restricted at trial to proving that the crimes occurred within that range of dates. State v. Layman, 279 Ga. 340, 341, (613 S.E.2d 639) (2005). “And, if there is a variation between the date alleged and the date proved at trial, the variance does not entitle a...