Price v. State, A12A1948.

• Decision Date: 07 February 2013
• Docket Number: No. A12A1948.,A12A1948.
• Citation: 320 Ga.App. 85,738 S.E.2d 289
• Parties: PRICE v. The STATE.
• Court: Georgia Court of Appeals

320 Ga.App. 85

738 S.E.2d 289

PRICE

v.The STATE.

No. A12A1948.

Court of Appeals of Georgia.

Feb. 7, 2013.

Larry Bush Hill, for Appellant.

Herbert E. Franklin, La Fayette, for Appellee.

BOGGS, Judge.

Sean Price was indicted on four counts of child molestation, and one count each of invasion of privacy and furnishing alcohol to a minor for conduct involving his 14–year–old stepdaughter. A jury found him guilty of invasion of privacy and acquitted him of the remaining charges. Following the denial of his amended motion for new trial, Price appeals, enumerating several errors. Having reviewed these claims, we discern no error and affirm.

The evidence showed that Price's wife discovered a videotape hidden in a pack of cigarettes (a brand Price smoked) in a toolbox in the garage. The videotape reveals Price setting up the video camera while his 14–year–old stepdaughter H.Y. showered. The videotape showed the stepdaughter walk into her room with a towel wrapped around her and then shows her naked before she got dressed. H.Y. testified that she did not give Price permission to videotape her and that she was unaware that he had recorded her.¹

Price testified in his own defense that he set up the video camera to record H.Y.'s activities at the request of his wife who was concerned because H.Y. was “starting to like boys,” had lied to her mother, and had taken a change of clothes to school. He explained that his wife directed him to record H.Y.'s activities to “see where the drugs are hidden, maybe see just what is going on, just normal teenage stuff, make sure she wasn't doing anything that she wasn't supposed to be doing.” Price stated that after he recorded H.Y. that day, he turned off the video recorder and gave the videotape to his wife. He stated further that he was unaware of what was recorded until the videotape was played at trial.

1. Price first argues that the trial court erred in denying his pre-trial motion to sever offenses. But Price has failed to include a transcript of the hearing on the motion to sever or a statutorily authorized substitute (see OCGA § 5–6–41(g)). In the absence of a transcript of the hearing on the motion, we must assume that after hearing the evidence, the trial court correctly exercised its discretion in denying the motion. Glass v. State, 289 Ga. 542, 546(3), 712 S.E.2d 851 (2011).

2. Price contends that the State failed to prove that the video was taken without the consent of all persons observed in that H.Y.'s younger sister “did not testify at trial that the video was taken without her consent even though she was observed on the video.” OCGA § 16–11–62 provides in part: “It shall be unlawful for: ... (2) Any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view[.]” Price argues that because the videotape briefly shows H.Y.'s younger sister, and the younger sister did not testify at trial, the State failed to prove that the recording was made “without the consent of all persons observed.”

Price's reading of the statute is incorrect. The statute does not require the State to show that each individual person observed did not give consent for the recording; rather it requires evidence that the recording was made without the consent of all persons. Because the evidence showed that H.Y. did not give her consent to be recorded, Price clearly did not have the consent of all persons. The evidence was therefore sufficient to sustain Price's conviction for invasion of privacy. See, e. g., Kelley v. State, 233 Ga.App. 244, 247(2), 503 S.E.2d 881 (1998) (invasion of privacy charge based upon photographing victim while she was passed out nude).

3. In two enumerations, Price argues his sentence was illegal because the trial court sentenced him to a “Men's Detention Center program” for 48 months as a condition of probation. He contends that the sentence “usurp[s] the power of the Department of Pardons and Paroles” and was “intended for punishment purposes only.”

Former OCGA § 42–8–35.4, applicable to Price's sentence in 2010, provided:

(a) In addition to any other terms and conditions of probation provided for in this article, the trial judge may require that a defendant convicted of a felony and sentenced to a period of not less than one year on probation ... shall complete satisfactorily, as a condition of that probation, a program of confinement in a probation detention center. Probationers so sentenced will be required to serve the period of confinement specified in the court order.” ²

Because Price was convicted of a felony, see OCGA § 16–11–69, and sentenced to five years of confinement, all of which was probated, Price's condition of probation requiring him to complete a detention center program for 48 months was authorized by former OCGA § 42–8–35.4. See Johnson v. State, 283 Ga.App. 425, 427(2), 641 S.E.2d 655 (2007) (condition of probation requiring defendant to serve 20 to 24 months in probation detention center authorized by OCGA § 42–8–35.4). And the trial court was authorized to impose a sentence within the limits of the law. See, e. g., Harris v. State, 272 Ga.App. 650, 653(5), 613 S.E.2d 170 (2005) (sentencing judge authorized by statute to set conditions of probation); B.J.L. v. State, 173 Ga.App. 317, 319(4), 326 S.E.2d 519 (1985) (no error committed where court authorized by statute to set condition of probation). And “[t]his court will not disturb a sentence within the statutory limits.” (Citation and punctuation omitted.) Clark v. State, 279 Ga. 243, 248(8), 611 S.E.2d 38 (2005).

4. Price contends that the trial court was without authority to impose sex offender conditions of probation. He argues that he was not convicted of a “criminal offense against a victim who is a minor” or “dangerous sexual offense” as defined in OCGA § 42–1–12 and therefore could not be subject to sex offender conditions of probation. The record reveals that in sentencing Price, the trial court ordered that Price, as an additional condition of probation, be “assigned to Sex Offender Supervision” and imposed 21 special conditions.³

“It is well settled that the probation and suspension statutes in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.” (Citation and punctuation omitted.) State v. Pless, 282 Ga. 58, 60, 646 S.E.2d 202 (2007); see Stephens v. State, 305 Ga.App. 339, 347–348(5)(c), 699 S.E.2d 558 (2010), aff'd, Stephens v. State, 289 Ga. 758(2), 716 S.E.2d 154 (2011). And while OCGA § 42–8–35 vests the sentencing court with the general power to impose reasonable conditions of probation, those provisions are not exclusive and “the court has authority to impose restrictions not specifically listed therein.” (Citation and punctuation omitted.) Pless, supra, 282 Ga. at 61, 646 S.E.2d 202.

Former OCGA § 42–8–35(b) applicable to Price's sentence provided:

(b) In determining the terms and conditions of probation for a probationer who has been convicted of a criminal offense against a victim who is a minor or dangerous sexual offense as those terms are defined in Code Section 42–1–12, the court may provide that the probationer shall be:

(1) Prohibited from entering or remaining present at a victim's school, place of employment, place of residence, or other specified place at times when a victim is present or from loitering in areas where minors congregate, child care facilities, churches, or schools as those terms are defined in Code Section 42–1–12;

(2) Required to wear a...