Johnston v. State
| Decision Date | 17 June 1994 |
| Docket Number | No. A94A1116,A94A1116 |
| Citation | 445 S.E.2d 566,213 Ga.App. 579 |
| Parties | JOHNSTON v. The STATE. |
| Court | Georgia Court of Appeals |
Gilbert J. Murrah, Bainbridge, for appellant.
J. Brown Moseley, Dist. Atty., for appellee.
Defendant Richard Johnston appeals his conviction for aggravated child molestation. The record reveals that the defendant was indicted on this charge on May 5, 1993. The record further reveals that the last act for which defendant was indicted occurred in May 1985. OCGA § 17-3-1(c) requires that prosecution for such crimes be commenced within seven years after the commission of the crime. 1 The State concedes on appeal that defendant was not indicted within the statutory limitation period. It is most unfortunate that we must reverse the conviction in this case on this basis because the evidence was otherwise sufficient to support defendant's conviction.
This case gives us an opportunity to reconsider our earlier decision in Sears v. State, 182 Ga.App. 480, 356 S.E.2d 72 (1987). In Sears, we held that infancy does not toll the running of a statute of limitation period. In reaching that conclusion we were guided by what was then the expression of legislative intent concerning statutes of limitation. At that time our legislature had provided no exceptions or conditions to tolling the applicable statute of limitation. Id. at 482, 356 S.E.2d 72. As is discussed supra, in footnote one, our legislature recently adopted OCGA § 17-3-2.1 which tolls the limitation period for certain offenses against minors, including child molestation and aggravated child molestation, until the victim reaches the age of 16.
This case highlights why such a tolling period is necessary for certain crimes against minors. In this case the victim was between three and five years of age at the time defendant repeatedly raped him. Because the victim's knowledge was imputed to the State and since the last act occurred on or before May 1985, defendant's indictment in 1993, when the victim was only 12 years old, was untimely. It is unlikely that a victim that young would have any conception he was the victim of a crime and would at most understand that the defendant hurt him; yet through a legal fiction we must assume the State had knowledge of these crimes at that time. In cases such as this, by the time the victim is actually able to understand or remember what happened to him, it is highly probable that the applicable statute of limitation period has expired. Without a tolling provision in such cases a defendant is far less likely to be convicted of a crime committed against a child if his victim is very young at the time of the crime. Certainly that is not a situation that should be promoted or encouraged.
OCGA § 17-3-2.1 evinces the legislature's intent that statutes of limitation for certain crimes against minors should be tolled by the...
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