Session v. State
| Docket Number | S23A0022,S23A0023 |
| Decision Date | 02 May 2023 |
| Parties | SESSION v. THE STATE |
| Court | Georgia Supreme Court |
In these companion appeals, Derrick Session challenges his convictions for failure to register as a sex offender in Georgia based on a conviction he received in Louisiana. He argues that the evidence was insufficient to support his Georgia convictions. He also argues that the Georgia registration statute as applied to him violates his federal rights to travel and equal protection, and he raises a facial challenge to the registration statute under the Georgia constitutional prohibition against legislation regarding the social status of citizens.
After thorough consideration, we reject those arguments. First Session has not shown that the evidence was insufficient to support his convictions, because he has conceded that the only argument as to sufficiency that he made in his primary appellate brief - that the convictions violated ex post facto principles - is at odds with controlling case law. Next, his arguments that the registration statute violated his federal rights to travel and to equal protection fail because they are based on the unduly speculative assumption that if he had committed the underlying sexual offense in Georgia, he would have been convicted of only a misdemeanor and thus not subject to registration. And finally, although Session makes an interesting argument that Georgia's constitutional prohibition against legislation regarding citizens' social status must mean something different than the repugnantly racist - and patently unconstitutional - meaning that this Court ascribed to it shortly after its first adoption in 1868, he has not shown that any different meaning that provision has today is inconsistent with the requirements of the Georgia sexual offender registry. We therefore affirm.
Viewed in the light most favorable to the verdicts, the evidence admitted at trial - much of which came from Louisiana court documents or stipulated facts - was as follows. In May 1994, Session was indicted in Louisiana for the aggravated rape of a four-year-old child. Session was 15 years old at the time of the alleged offense. On May 18, 1995, Session entered a plea of guilty to an amended charge of sexual battery. The Louisiana trial court accepted that plea and, at a hearing on August 15, 1995, sentenced Session to ten years to serve at hard labor. In 2004, after completing his sentence, Session received a first-offender pardon pursuant to Louisiana R.S. 15:572.
At some point, Session moved to Texas. Session later moved to Paulding County and registered on the Georgia sex offender registry ("the Registry") with the Paulding County Sheriff's Office in April 2017. In March 2019, a detective conducted a residence check at a Dallas, Georgia, address that Session had provided to the Paulding County Sheriff's Office, and was told that Session was not living there. Session, who was living in Kennesaw at the time, was arrested for failure to register. He appeared at the Paulding County Sheriff's Office in March 2020 to update his registration; he apparently was arrested while completing his paperwork.
On October 28, 2020, a Paulding County grand jury returned two separate indictments against Session, each charging him with two counts of failure to register as a sex offender under OCGA § 421-12, with one indictment alleging violations in March 2019 and the other alleging violations in February and/or March 2020. Session filed an identical general demurrer and plea in bar in each case. In those filings, Session demurred generally to all counts in the indictments as failing to charge him with a crime and argued that his prior first-offender pardon barred the Paulding County prosecution.[1] He also "demur[red] to the Registry as-applied to his case" on three federal constitutional grounds. First, he argued that the Registry violated his fundamental right to travel under the Privileges and Immunities Clause by treating him worse than a native Georgian, because the conduct that was the basis for his underlying offense would have constituted a misdemeanor not subject to registration if committed in Georgia. Second, he argued that the application of the Registry to him violated the Equal Protection Clause by distinguishing between in-state and out-ofstate convictions. Third, he argued that his due process rights had been violated by lack of notice that he would have to register, given that he was a minor at the time of the offense, was convicted of something that would be a misdemeanor in Georgia, and was pardoned by Louisiana. Apart from his as-applied federal constitutional challenges, Session also raised facial and as-applied challenges to the Registry under Paragraph XXV of the Georgia Bill of Rights, which provides, "The social status of a citizen shall never be the subject of legislation." Ga. Const. of 1983, Art. I, Sec. I, Par. XXV.
The case proceeded to a bench trial of both cases in July 2022; the trial court received both stipulated facts and evidence. In his closing argument, Session argued that OCGA § 42-1-12 violated the United States Constitution, as applied to him, and the Georgia Constitution, both facially and as applied. The trial court orally denied Session's demurrer and plea in bar in each case and adjudicated him guilty on all counts (except for one count that the State nolle prossed). The court imposed an aggregate sentence of 20 years, to serve five in confinement, with the incarceration time to be suspended, conditioned upon Session paying $6,000 in fines within six months and fully complying with the registration requirements of the sex offender statute. Session filed timely notices of appeal.
Because "[w]e do not unnecessarily decide the constitutionality of statutes," In the Interest of C.C., 314 Ga.446, 451 (2) (a) (877 S.E.2d 555) (2022), we consider first Session's argument that the evidence was insufficient to support his convictions. We conclude that Session has not shown that the evidence was insufficient to support his convictions.
When evaluating the sufficiency of evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (emphasis omitted).
Similar to appeals from a jury trial resulting in a criminal conviction, on appeal from a bench trial, we view all evidence in the light most favorable to the trial court's verdict, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence.
Jones v. State, 307 Ga. 505, 506 (1) (837 S.E.2d 288) (2019) (citation and punctuation omitted). "On appeal, it is the defendant's burden to show that the trial evidence was insufficient as a matter of constitutional due process to support his convictions." Charles v. State, 315 Ga. 651, 653 (2) (884 S.E.2d 363) (2023); see also Davis v. State, 312 Ga. 870, 873 (1) n.2 (866 S.E.2d 390) (2021) ().
[T]he provisions of OCGA § 42-1-12 require that convicted sex offenders falling within its purview provide a substantial amount of personal information, including name, social security number, age, detailed physical description, fingerprints, photograph, date and place of employment, and vehicle identification, to the sheriff of the county of his residence. OCGA § 42-1-12 (a) (16); (f) (2). After initially registering in person, the offender must renew registration in person once a year, OCGA § 42-1-12 (f) (4), and update the sheriff within 72 hours of any change to the required information. OCGA § 42-1-12 (f) (5). These requirements must be complied with until death, except for periods of subsequent incarceration. OCGA § 42-1-12 (f) (6). This information is maintained and made accessible to the public by the Georgia Bureau of Investigation and the relevant county sheriff, OCGA § 42-1-12 (h), (i), and submitted to "each school in this state." OCGA § 42-1-12 (1). And violation of the requirements of this Code section constitutes a felony punishable by up to 30 years imprisonment. OCGA § 421-12 (n) (1).
State v. Davis, 303 Ga. 684, 690 (2) (814 S.E.2d 701) (2018).
The State in this case charged Session with failing to register in violation of OCGA § 42-1-12 (n). The indictments of Session alleged that he was required to register "pursuant to the provisions of OCGA 42-1-12 (e) by virtue of having previously been convicted of the offense of Sexual Battery on August 15, 1995 in the Parish of Franklin Louisiana, said offense being a criminal offense against a victim who is a minor and having been placed on supervised release on August 15, 1995[.]" OCGA § 42-1-12 (e) lists several categories of persons for whom registration is required. The State provides two alternative bases on which Session was required to register: the registration requirement for any individual who "[h]as previously been convicted of a criminal offense against a victim who is a minor and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996[,]" OCGA § 42-1-12 (e) (3), and the registration requirement for any individual who "is a nonresident who changes residence from another...
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