Phagan v. State, S97A0161

CourtSupreme Court of Georgia
Writing for the CourtBENHAM; All the Justices concur, except HUNSTEIN; SEARS; CARLEY; HUNSTEIN
Citation268 Ga. 272,486 S.E.2d 876
Parties, 97 FCDR 2622 PHAGAN v. The STATE.
Docket NumberNo. S97A0161,S97A0161
Decision Date16 July 1997

Page 876

486 S.E.2d 876
268 Ga. 272, 97 FCDR 2622

No. S97A0161.
Supreme Court of Georgia.
July 16, 1997.
Reconsideration Denied July 30, 1997.

Page 878

[268 Ga. 286] Joseph A. Homans, Thompson, Fox, Chandler, Homans & Hicks, Gainesville, for Phagan.

Lydia Jackson Sartain, Dist. Atty. and Lucy Kimbrough Henry, Asst. Dist. Atty., Gainesville, for the State.

Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, Amicus Appellee.

[268 Ga. 272] BENHAM, Chief Justice.

Delma Cecil Phagan was convicted of aggravated child molestation (OCGA § 16-6-4(a)), sexual exploitation of a child (OCGA § 16-12-100(b)(1)), and two counts of statutory rape (OCGA § 16-6-3(a)). 1 On appeal, Phagan challenges the constitutionality of OCGA § 16-6-3(a) [268 Ga. 273] and 16-6-4, as amended in 1995, and questions the sufficiency of the evidence as well as several evidentiary rulings made by the trial court.

In January 1996, the grand jury returned a true bill on an indictment which charged appellant with two counts of statutory rape, i.e., engaging in sexual intercourse with a fifteen-year-old girl during the summer months of 1995. Effective July 1, 1995, it was illegal to have sex with a person under the age of sixteen to whom the accused was not married. OCGA § 16-6-3(a); Ga. L.1995, p. 957. Prior to July 1, 1995, the conduct was illegal if one of the parties was under the age of fourteen. Ga. L.1968, p. 715. The statute prohibiting aggravated child molestation, for which appellant was also indicted, was similarly amended, also effective July 1, 1995. OCGA § 16-6-4; Ga. L.1995, p. 957, § 4. Since the fifteen-year-old minor in the case at bar turned sixteen on September 29, 1995, the conduct with which appellant was charged was illegal behavior between July 1, the effective date of the statute, and September 28, 1995, the last day the minor was under sixteen. 2

1. Appellant contends that the 1995 amendments to the statutory rape and child molestation statutes which expanded the coverage of the statutes to minors under the age of sixteen are unconstitutional when applied to him since he had lawfully engaged in consensual sexual activity with the minor before the effective date of the amendments, and was thereby entitled, under the auspices of the constitutional right of privacy, to continue the activity. In effect, appellant contends his participation in the conduct before

Page 879

July 1 afforded him "grandfathered" protection against an accusation of illegal conduct occurring after July 1. Under appellant's theory, a legislative proscription of certain conduct is not applicable to those persons who had previously engaged in the proscribed conduct prior to it being declared illegal.

While we would agree that the 1995 amendments could not be applied constitutionally to prosecute appellant for his pre-July 1 sexual relationship with the minor, the indictment makes it explicitly clear that appellant was prosecuted for his post-July 1 conduct. We cannot agree with appellant's suggestion that his right of privacy exempts him from the amendments' coverage. Whatever privacy interest appellant invokes to protect his consensual sexual activity with a fifteen-year-old female not his spouse does not offer safehaven from the criminalization of the conduct. Within the General Assembly's constitutional empowerment to make all laws it deems necessary and proper for the welfare of the State so long as the law is constitutional [268 Ga. 274] (1983 Ga. Const., Art. III, § VI, Para. I), rests the power to change or modify existing laws. State Bd. of Educ. v. County Bd. of Educ. of Richmond County, 190 Ga. 588(1), 10 S.E.2d 369 (1940). The right to privacy is a fundamental right and a government-imposed limitation on that right must undergo strict judicial scrutiny to determine whether the impingement serves a compelling state interest. Ambles v. State, 259 Ga. 406(2b), 383 S.E.2d 555 (1989). See also Zant v. Prevatte, 248 Ga. 832, 833-34, 286 S.E.2d 715 (1982). 3

The State has a "compelling governmental interest [in] the welfare of the children." In the Interest of J. C., 242 Ga. 737, 738, 251 S.E.2d 299 (1978). Its interest in " 'safeguarding the physical and psychological well-being of a minor' is 'compelling' " and " 'beyond the need for elaboration.' " [Cit.] Aman v. State, 261 Ga. 669(1b), 409 S.E.2d 645 (1991). See also In the Interest of B.L.S., 264 Ga. 643, 649, 449 S.E.2d 823 (Sears, J., concurring in part and dissenting in part); Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 (1979). See also Benton v. State, 265 Ga. 648(2), 461 S.E.2d 202 (1995). The 1995 amendments raised the age which a minor must reach before being legally capable of consenting to sexual intercourse, and extended the statutory protection afforded children against exposure to immoral or indecent acts intended to arouse or satisfy sexual desires. In raising the age at which a minor may consent to sexual intercourse and under which a minor may not be subjected to immoral or indecent acts, the General Assembly acted to further the State's compelling interests in safeguarding young people. In light of the State's compelling interests in the welfare of its young citizens, the trial court properly upheld the age amendments against appellant's constitutional challenge.

2. Appellant also took aim at the constitutionality at OCGA § 16-6-3(b), which provides harsher punishment for older persons found guilty of statutory rape. 4 Since appellant contends the statute unconstitutionally discriminates against a class of persons, an equal protection analysis is warranted. However, "where a criminal statute does not discriminate on racial grounds or against a suspect class, equal protection and due process are satisfied if the statute [268 Ga. 275] bears a 'reasonable relation to a proper legislative purpose' and is 'neither arbitrary nor discriminatory.' [Cit.]"Fleming v. Zant, 259 Ga. 687, 688, 386 S.E.2d 339 (1989). Appellant's age (46) does not make him representative of a suspect class based on age. SeeMass. Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1976) (officers over age fifty did not

Page 880

constitute a suspect class for purposes of equal protection). Since the statute does not disadvantage a suspect class or interfere with the exercise of a fundamental right, it need only bear a reasonable relationship to a legitimate state purpose. Benton v. State, supra, 265 Ga. at 649, 461 S.E.2d 202; Ambles v. State, 259 Ga. 406, 383 S.E.2d 555 (1989). See also Fulton County School Dist. v. Sanders, 242 Ga. 298(2), 248 S.E.2d 670 (1978), where this court applied a "rational basis for review" standard to a statutory scheme calling for mandatory retirement at a certain age.

In examining a statutory sentencing scheme that provided varied punishment based on the perpetrator's age, the Supreme Court of Nevada held that the punishment differential was not violative of the Equal Protection Clause because "the legislature could reasonably decide that [persons] beyond a certain age should have sufficient maturity and judgment to be held responsible for conduct which might be excusable in a younger person." See also State v. Drake, 219 N.W.2d 492, 496 (Iowa 1974), where the Supreme Court of Iowa upheld its statute against constitutional challenge. We find the rationale of these two courts persuasive and conclude that the General Assembly had a rational basis for enacting the amendment calling for disparate sentences based on the age of the perpetrator. Accordingly, the trial court did not err when it upheld the constitutionality of OCGA § 16-6-3(b).

3. We turn next to appellant's assertions that the evidence presented at trial was not sufficient to authorize a rational trier of fact to find appellant guilty of the charges beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). With regard to the two statutory rape convictions, there is no doubt that appellant and the minor engaged in sexual intercourse. However, in order to convict appellant of the charges, the State had to prove that the acts took place between July 1 and September 28, 1995. We examine the sufficiency of the evidence presented against appellant with that time frame in mind.

(a) The minor testified that she had sexual intercourse with appellant between five and ten times. At no time during her testimony was she able to provide a date on which she and the appellant engaged in sexual conduct. On direct examination, she testified that she had met appellant in June or July 1995, after school had recessed for the summer months, and that she had had sexual intercourse [268 Ga. 276] with him that evening, 5 as well as two to four weeks later. She stated that the night before she underwent a physical examination at Northeast Georgia Medical Center at her mother's insistence, she and appellant had had sex. She testified that the sexual conduct was repeated two or three times between the hospital visit and her sixteenth birthday. Hospital records admitted into evidence reflect that the victim was seen on July 15, 1995, "per parental request."

On cross-examination, the minor said her first two sexual encounters with appellant took place before July 1, 1995, and she was unable to tell the jury whether she had been with appellant after July 1. She identified a greeting card found in appellant's home as one she had written on June 14, 1995, after several sexual encounters with appellant, and which she had delivered to him "one week or so later," soon after which they saw each other for the last time. Despite the minor's contradictory testimony concerning the timing of her encounters with appellant, her testimony that she had intercourse with appellant on July 14 and two or three times thereafter while she was fifteen was sufficient evidence from which the jury could determine beyond a reasonable doubt...

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