Green v. The State

• Decision Date: 04 October 2010
• Docket Number: No. A10A0608.,A10A0608.
• Parties: GREENv.The STATE.
• Court: Georgia Court of Appeals

303 Ga.App. 210
692 S.E.2d 784

GREEN
v.
The STATE.

No. A10A0608.

Court of Appeals of Georgia.

March 26, 2010.
Certiorari Denied Oct. 4, 2010.

692 S.E.2d 784

Stephen R. Scarborough, Atlanta, for appellant.

Garry T. Moss, Dist. Atty., J. Clifford Head, Wallace W. Rogers, Jr., Asst. Dist. Attys., for appellee.

MIKELL, Judge.

Charlton Paul Green was convicted in Cherokee County Superior Court in a bench trial on May 7, 2009, of failure to register as a sexual offender. The underlying conviction requiring Green to register as a sexual offender was a 1999 conviction for sodomy. On appeal, Green challenges the sufficiency of the evidence, arguing that the state failed to prove that he is required to register as a sexual offender because under Powell v. State ¹ and Lawrence v. Texas,² consensual sodomy is no longer a crime. Green also argues that his trial counsel was ineffective for not asserting this defense at trial. We affirm.

The record here shows that in 1997, Green was charged with sodomy in violation of OCGA § 16-6-2,³ after he performed oral sex on another male, who was 16 years old at the time of the incident. Green pled guilty in Pickens County Superior Court and was

692 S.E.2d 785

sentenced as a first offender, but after violating the terms of his probation, he was ultimately convicted and sentenced on the sodomy count and related offenses in January 1999, which subjected him to the sexual offender registration statutes.

In January 2005, Green was charged with failure to register as a sexual offender in Cherokee County, after he failed to register as required by OCGA § 42-1-12. Green pled guilty and was sentenced to serve one year, to run concurrent with the sentence imposed in another Cherokee County case, where he was sentenced on January 25, 2005, to two years in confinement after pleading guilty to possession of methamphetamine. On December 9, 2008, Green was indicted again for failing to register as a sexual offender and was charged as a recidivist. Green was convicted in a bench trial, then filed a motion for new trial, in which he asserted the arguments he now raises on appeal. It is from his conviction and the denial of his motion for new trial that Green appeals.

1. In his first enumeration of error, Green challenges the sufficiency of the evidence, and we find no error.

The sex offender registration law first became effective on July 1, 1996 and, in pertinent part, requires registration by any individual who “(h)as previously been convicted of a criminal offense against a minor(, as defined in OCGA § 42-1-12(a)(9),) and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996.” OCGA § 42-1-12(e)(3).⁴

As a result of his sodomy conviction in 1999, Green was required to register as a sexual offender pursuant to OCGA § 42-1-12(a)(9)(A)(iii) and (e)(1). OCGA § 42-1-12(e)(1) provides that “[r]egistration pursuant to this Code section shall be required by any individual who: (1)[i]s convicted on or after July 1, 1996, of a criminal offense against a victim who is a minor.” Subsection (a)(9)(A) defines “criminal offense against a victim who is a minor” as follows: “any criminal offense under Title 16 or any offense under federal law or the laws of another state or territory of the United States which consists of ... (iii)[c]riminal sexual conduct toward a minor.” OCGA § 42-1-12(a)(14) defines a minor, in pertinent part, as “any individual under the age of 18 years.” Green's argument on appeal is not directed at any provision of the registration statute. Rather, he maintains that because of substantive changes in the law, which legalized consensual sodomy in Georgia, he is not required to register.

In 1998, after Green was sentenced as a first offender but before he was ultimately convicted on the sodomy charge, our Supreme Court held in Powell v. State ⁵ that insofar as OCGA § 16-6-2 “criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent, [it] manifestly infringes upon a constitutional provision[,] which guarantees to the citizens of Georgia the right of privacy.” ⁶ Five years later in Lawrence v. Texas, ⁷ the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution shields consensual, noncommercial, private sexual conduct between adults from government interference.⁸ Based on these decisions, Green urges this court to vacate his sodomy conviction, which would, in turn, require the reversal of his conviction for failure to register.

In support of his argument that this court can grant him the relief he seeks, Green relies on Thomas v. Warren.⁹ In that case, our Supreme Court affirmed the denial of habeas corpus relief sought by the defendant, who argued that he was not required to register as a sexual offender.¹⁰ There, the

692 S.E.2d 786

defendant sought relief from custody before his trial on the failure to register offense, contending that he was not required to register as a sexual offender because he pled guilty...