Powell v. State, S98A0755.

CourtSupreme Court of Georgia
Citation270 Ga. 327,510 S.E.2d 18
Docket NumberNo. S98A0755.,S98A0755.
PartiesPOWELL v. The STATE.
Decision Date23 November 1998


Brenda Joy Bernstein, Steven H. Sadow, Atlanta, for Anthony San Juan Powell.

Pamela Danette South, Asst. Dist. Atty., Daniel J. Porter, Dist. Atty., Lawrenceville, for the State.

Amicus Appellee: Thurbert E. Baker, Atty. Gen., Michael E. Hobbs, Asst. Atty. Gen., Department of Law, Atlanta.

Amicus Appellant: Stephen Randall Scarborough, Lambda Legal Def./Educ. Fund, Inc., Atlanta, Kelly S. Brown.ö

BENHAM, Chief Justice.

Anthony San Juan Powell was charged in an indictment with rape and aggravated sodomy in connection with sexual conduct involving him and his wife's 17-year-old niece in Powell's apartment. The niece testified that appellant had sexual intercourse with her and engaged in an act of cunnilingus without her consent and against her will. Powell testified and admitted he performed the acts with the consent of the complainant. In light of Powell's testimony, the trial court included in its jury charge instructions on the law of sodomy. The jury acquitted Powell of the rape and aggravated sodomy charges and found him guilty of sodomy, thereby establishing that the State did not prove beyond a reasonable doubt that the act was committed "with force and against the will" of the niece. See OCGA § 16-6-2(a). Powell brings this appeal contending the statute criminalizing acts of sodomy committed by adults without force in private is an unconstitutional intrusion on the right of privacy guaranteed him by the Georgia Constitution. Powell also contends that the trial court erred when it offered the jury the opportunity to consider the unindicted charge of sodomy by sua sponte instructing the jury on the law of sodomy.

1. In keeping with the well-established principle that this Court will not decide a constitutional question if the appeal can be decided upon other grounds (Bd. of Tax Assessors v. Tom's Foods, 264 Ga. 309, 310, 444 S.E.2d 771 (1994)), we first address the non-constitutional issues raised by the appeal. The first issue is the sufficiency of the evidence. OCGA § 16-6-2(a) defines sodomy as the performance of or submission to "any sexual act involving the sex organs of one person and the mouth or anus of another." Appellant's admission at trial that he placed his mouth upon the genitalia of his wife's niece, as well as the niece's testimony similarly describing appellant's conduct, constitutes sufficient evidence to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant committed sodomy. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Carter v. State, 122 Ga.App. 21(4), 176 S.E.2d 238 (1970),overruled on other grounds in Hines v. State, 173 Ga.App. 657(2), 327 S.E.2d 786 (1985)


2. Appellant next contends that the trial court erred when, without request by the State or appellant, it instructed the jury on the law of sodomy and permitted the fact-finder to return a verdict on that included charge.

In State v. Stonaker, 236 Ga. 1, 2, 222 S.E.2d 354 (1976), this Court set forth rules "to clarify for the trial courts what must be charged and what may be charged and what need not be charged in the area of lesser included crimes in criminal trials." The second rule stated that the trial court could, "of [its] own volition and in [its] discretion, charge on a lesser crime of that included in the indictment and accusation." Id.; Rodriguez v. State, 211 Ga.App. 256(2), 439 S.E.2d 510 (1993). Thus, when the evidence authorizes a charge on an offense included in the offense for which the defendant is being tried, the trial court is authorized to instruct the jury on the included offense sua sponte. Alford v. State, 200 Ga.App. 483, 484, 408 S.E.2d 497 (1991)

. Sodomy is an offense included in the crime of aggravated sodomy (Stover v. State, 256 Ga. 515(2), 350 S.E.2d 577 (1986)), and the evidence summarized in Division 1 authorized a charge on the law of sodomy as an included offense. Accordingly, the trial court acted within the Stonaker framework when it exercised its discretion and instructed the jury on the included offense of sodomy.

3. Lastly, we address appellant's constitutional challenge to OCGA § 16-6-2(a). In so doing, we are mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation "manifestly infringes upon a constitutional provision or violates the rights of the people.... [Cit.]" Miller v. State, 266 Ga. 850(2), 472 S.E.2d 74 (1996). Appellant contends that the statute criminalizing intimate sexual acts performed by adults in private and without force impermissibly infringes upon the right of privacy guaranteed all Georgia citizens by the Georgia Constitution.1

The right of privacy has a long and distinguished history in Georgia. In 1905, this Court expressly recognized that Georgia citizens have a "liberty of privacy" guaranteed by the Georgia constitutional provision which declares that no person shall be deprived of liberty except by due process of law. Pavesich v. New England Life Ins., 122 Ga. 190, 197, 50 S.E. 68 (1905). The Pavesich decision constituted the first time any court of last resort in this country recognized the right of privacy (Katz, The History of the Georgia Bill of Rights, 3 GSU L.Rev. 83, 118 (1986); Gouldman-Taber Pontiac v. Zerbst, 213 Ga. 682, 100 S.E.2d 881 (1957)), making this Court a pioneer in the realm of the right of privacy. Bodrey v. Cape, 120 Ga.App. 859, 866, 172 S.E.2d 643 (1969). See also Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 200 S.E.2d 127 (1973),rev'd420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), where this Court proudly noted that the right of privacy "was birthed by this court" in Pavesich. Since that time, the Georgia courts have developed a rich appellate jurisprudence in the right of privacy which recognizes the right of privacy as a fundamental constitutional right, "having a value so essential to individual liberty in our society that [its] infringement merits careful scrutiny by the courts." Ambles v. State, 259 Ga. 406(2)(b), 383 S.E.2d 555 (1989).

In Pavesich, the Court found the right of privacy to be "ancient law," with "its foundation in the instincts of nature[,]" derived from "the Roman's conception of justice" and natural law, making it immutable and absolute. Id., at 194, 50 S.E. 68. The Court described the liberty interest derived from natural law as "embrac[ing] the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common good." Id., at 195, 50 S.E. 68. "Liberty" includes "the right to live as one will, so long as that will does not interfere with the rights of another or of the public" (id., at 196, 50 S.E. 68), and the individual is "entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has the right to arbitrarily take away from him his liberty." Id., at 197, 50 S.E. 68. The Pavesich Court further recognized that the "right of personal liberty" also embraces "[t]he right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law...." Id. Stated succinctly, the Court ringingly endorsed the "right `to be let alone' so long as [one] was not interfering with the rights of other individuals or of the public." Id.2

In the ensuing years since Pavesich was decided and Georgia's right of privacy recognized, the Georgia appellate courts have expounded on the right of privacy, describing it as protection for the individual from unnecessary public scrutiny (Athens Observer v. Anderson, 245 Ga. 63, 263 S.E.2d 128 (1980)); as the right of the individual "to be free from... the publicizing of one's private affairs with which the public has no legitimate concern" (Gouldman-Taber Pontiac v. Zerbst, supra, 213 Ga. at 683, 100 S.E.2d 881); "the right to define one's circle of intimacy" (Macon-Bibb County &c. Auth. v. Reynolds, 165 Ga.App. 348, 350, 299 S.E.2d 594 (1983)); and the right "to be free of unwarranted interference by the public about matters [with] which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual's private life which would outrage ... a person of ordinary sensibilities." Georgia Power Co. v. Busbin, 149 Ga.App. 274(6), 254 S.E.2d 146 (1979). This Court has determined that a citizen's right of privacy is strong enough to withstand a variety of attempts by the State to intrude in the citizen's life. In Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 (1982), the Court ruled that the State's assertion of a duty to protect a prisoner's health and its interest in preserving human life did not amount to the compelling state interest which could override a sane state prisoner's refusal to eat or submit to medical treatment for the effects of starvation. In State of Georgia v. McAfee, 259 Ga. 579, 385 S.E.2d 651 (1989), the Court again ruled that a citizen's constitutional right of privacy and liberty under which he refused medical treatment was not outweighed by any interest the State might have in the preservation of life. In Harris v. Cox Enterprises, 256 Ga. 299, 302, 348 S.E.2d 448 (1986), Georgia's strong public policy in favor of open government was required to bend in favor of the individual's right of privacy when matters about which the public had no legitimate concern were at issue. It is clear from the right of privacy appellate jurisprudence which emanates from Pavesich that the "right to be let alone" guaranteed by the Georgia Constitution is far more extensive that the right of privacy protected by the U.S. Constitution, which protects only those matters "deeply rooted in this...

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