In re Baucom
| Decision Date | 30 April 2009 |
| Docket Number | No. A09A0689.,A09A0689. |
| Citation | 297 Ga. App. 661,678 S.E.2d 118 |
| Parties | In re BAUCOM. |
| Court | Georgia Court of Appeals |
Douglas R. Daum, Snellville, for appellant.
Daniel J. Porter, Dist. Atty., Sabrina Nizamuddin, Asst. Dist. Atty., for appellee.
Robert V. Baucom filed a petition pursuant to OCGA § 42-1-12(g)(1) for relief from the requirement that he register as a sex offender. Following a hearing, the trial court issued an order denying the petition, and Baucom now appeals, arguing that the trial court (1) abused its discretion and (2) erred by failing to include written findings of fact and conclusions of law in its order. Discerning no error, we affirm.
In reviewing the denial of a petition under OCGA § 42-1-12(g)(1), this Court "applies the `clearly erroneous' standard to its review of the trial court's findings of fact." (Citation and punctuation omitted.) Miller v. State, 291 Ga.App. 478, 479, 662 S.E.2d 261 (2008). "[T]he interpretation of a statute[, however,] is a question of law, which is reviewed de novo on appeal." (Citation omitted.) Sharma v. State, 294 Ga.App. 783, 784, 670 S.E.2d 494 (2008).
Baucom's petition alleged that he is subject to the registration requirements in OCGA § 42-1-12 because he was previously convicted under the laws of Tennessee of a criminal offense against a victim who was a minor, but the petition did not specify what that offense was. According to the Petition, more than ten years had elapsed since Baucom was released from probation, and, from the time he was placed on probation, Baucom had not been "arrested, accused or convicted" of any further offenses under any state or federal law.
During the hearing on Baucom's petition, his counsel advised the trial court that Baucom had been placed on probation in Tennessee in 1989, had successfully completed that probation, and after being placed on probation had "no further brushes with the law." Baucom's counsel also asserted that the petition was supported by a Comprehensive Psychiatric Sexual Child Abuse Addictionology and Pain Review by Dr. Todd Estroff. According to Baucom's counsel, Dr. Estroff concluded that he "seriously doubt[ed] that Baucom would ever constitute a risk of any sort of offense of this nature to anyone." Dr. Estroff's report, however, is not included in the record on appeal.
When Baucom's counsel tendered Baucom's Tennessee sentence, the trial court observed that the document did not provide any information about the allegations against Baucom.1 Baucom's counsel did not explain those allegations, stating only that he believed Baucom had been convicted under Tennessee law of using a minor for obscene purposes. Although Baucom then testified at the hearing, he provided no further information about the facts underlying his Tennessee conviction.
An assistant district attorney from the Gwinnett County District Attorney's Office appeared at the hearing and opposed Baucom's petition, citing the State's lack of information about Baucom's prior offense. The limited information the State was able to gather indicated that Baucom was originally indicted in Tennessee for aggravated rape but later pled guilty to the lesser included offense of use of a minor for obscene purposes.
1. Baucom contends that the trial court abused its discretion in denying his petition. We disagree.
Baucom filed his petition pursuant to OCGA § 42-1-12(g)(1), which provides:
Any sexual offender required to register under this Code section who meets the criteria set forth in paragraph (2) of this subsection may petition the superior court of the jurisdiction in which the sexual offender is registered to be released from the registration requirements of this Code section. The court may issue an order releasing the sexual offender from further registration if the court finds that the sexual offender does not pose a substantial risk of perpetrating any future dangerous sexual offense.
OCGA § 42-1-12(g)(2), in turn, states: "In order to petition the court pursuant to paragraph (1) of this subsection, the sexual offender shall: (A) Have been sentenced pursuant to subsection (c) of Code Section 17-10-6.2;2 and (B) Have had ten years elapse since his or her release from prison, parole, supervised release, or probation."
Baucom argues that his petition should have been granted because he presented prima facie evidence that he did not pose a substantial risk of perpetrating a future dangerous sexual offense and the State failed to rebut that evidence. Baucom asserts that he presented "what in likelihood is the highest and best evidence," the report of a licensed psychiatrist, Dr. Estroff, that "he essentially posed no threat whatsoever of reoffending." Dr. Estroff's report, while apparently tendered at the hearing on Baucom's petition, is not included in the record on appeal, leaving us unable to evaluate the strength and credibility of Dr. Estroff's conclusions. "The burden is on [Baucom] to show error affirmatively from the record, and we will not presume error where the record is silent." (Footnote omitted.) Smart v. State, 253 Ga.App. 649, 653(5), 560 S.E.2d 92 (2002). Without access to Dr. Estroff's report, we have no basis for determining that the trial court failed to give it appropriate weight.
Also absent from the record in this case is any evidence or information regarding the conduct underlying Baucom's Tennessee conviction. While, in considering a petition under OCGA § 42-1-12(g)(1), a superior court's inquiry is prospective, focusing on the potential risk that the petitioner will commit a dangerous sexual offense in the future, the facts surrounding the petitioner's original offense would be relevant to assessing that risk. When he took the stand, Baucom could have offered some explanation regarding his prior offense, but he chose...
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... ... OCGA 42119(d)(3). The trial court's decision whether to grant a petition for release from the registration requirements is reviewed on appeal for an abuse of discretion. See In re Baucom, 297 Ga.App. 661, 663(1), 678 S.E.2d 118 (2009) ; Miller v. State, 291 Ga.App. 478, 479(1), 662 S.E.2d 261 (2008). Under this standard, we review the trial court's legal conclusions de novo, and we uphold the trial court's findings on disputed facts and witness credibility as long as they are ... ...
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