Spivey v. State, A05A0987.

• Decision Date: 29 July 2005
• Docket Number: No. A05A0987.,A05A0987.
• Citation: 274 Ga. App. 834,619 S.E.2d 346
• Parties: SPIVEY v. The STATE.
• Court: Georgia Court of Appeals

274 Ga. App. 834

619 S.E.2d 346

SPIVEY v. The STATE.

No. A05A0987.

Court of Appeals of Georgia.

July 29, 2005.

COPYRIGHT MATERIAL OMITTED

Richard A. Waller, Jr., Macon, for appellant.

Kelly R. Burke, District Attorney, Katherine K. Lumsden, Assistant District Attorney, for appellee.

BARNES, Judge.

Terry Eugene Spivey was convicted of criminal attempt to commit child molestation, criminal attempt to entice a child for indecent purposes, and computer pornography and child exploitation. At sentencing, the trial court ordered him to register as a sex offender. Spivey appeals, contending that the trial court erred by requiring him to register as a sex offender. We disagree, and affirm.

Although our decision is based on the language of the statute, the following facts are pertinent. Spivey was arrested as part of a police Internet "sting" operation, in which an adult male police officer posed as a 14-year-old girl looking for pen pals on the Internet. Spivey responded to the posting, and the two began corresponding and chatting online. Spivey sent explicit sexual messages to the fictitious minor, and eventually arranged a meeting at a skating rink frequented primarily by children. After confirming that Spivey sent the messages, the police arrested him at the skating rink when he arrived for the meeting. A subsequent search of Spivey's computer yielded records of conversations between Spivey and the fictitious minor, and sexually explicit pictures of minors. At sentencing, the trial court ordered Spivey to register as a sex offender pursuant to OCGA § 42-1-12(a)(4)(B).

In his only enumeration of error, Spivey contends the trial court erred in requiring him to register as a sex offender. The sexual offender registry act requires persons "convicted of a criminal offense against a victim who is a minor or . . . convicted of a sexually violent offense" to register as a sex offender. OCGA § 42-1-12(b)(1)(A)(i). Spivey argues that his convictions do not fit into either category. We disagree.

1. We begin by noting that the interpretation of a statute is a question of law, which is reviewed de novo on appeal. Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543 S.E.2d 733 (2000). Because the trial court's ruling on a legal question is not due any deference, we apply the "plain legal error" standard of review. Id. We also note that OCGA § 42-1-12 is a criminal statute. OCGA § 42-1-12(h) (failure to comply with registration statute is a felony). Thus, we apply the rule that if the criminal statute is open to more than one reasonable interpretation, it must be construed strictly against criminal liability and in favor of the individual facing criminal liability. Fleet Finance v. Jones, 263 Ga. 228, 231(3), 430 S.E.2d 352 (1993).

We interpret a statute to give effect to the legislative intent; "[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy." OCGA § 1-3-1(a). To determine the legislative intent of a statute, we begin with the literal text; where the literal text of a statute is plain and does not lead to absurd or impracticable consequences, we apply the statute as written without further inquiry. Diefenderfer v. Pierce, 260 Ga. 426, 426-427, 396 S.E.2d 227 (1990). The language of a statute is given its most natural and obvious import, without resorting to forced or subtle interpretations to either expand or limit the statute's operation. Schlomer v. State, 247 Ga.App. 257, 259(1), 543 S.E.2d 472 (2000). We interpret a statute to give effect to the real legislative intent and meaning, however, and not so strictly as to defeat the legislative purpose. Id. With these rules of statutory interpretation in mind, we turn to the sexual offender registry statute.

The sexual offender registry act is designed to require registration for a wide array of offenses. Registration is required for those convicted of sexually violent crimes, and for those convicted of committing a variety of offenses against children. See OCGA § 42-1-12(a)(4)(B). Registration is required not only for those convicted of sexual offenses against a child, but also for those convicted of child pornography charges, or those convicted of charges based on conduct underlying a criminal conviction that constitutes a sexual offense against a child.¹ See OCGA § 42-1-12(a)(4)(B).

Spivey argues first that his convictions are not sexually violent offenses, and second that his convictions were not criminal offenses against a victim who is a minor within the meaning of OCGA § 42-1-12(a)(4)(B). We agree as to the first argument and disagree as to the second.

(a) We agree that his convictions are not "sexually violent offense[s]" as defined in OCGA § 42-1-12(a)(7), which includes violations related to rape, aggravated sodomy, aggravated child molestation, and other offenses with an element of physical contact. None of Spivey's convictions has the requisite element of physical contact to be categorized as sexually violent offenses under OCGA § 42-1-12(a)(7).

(b) We do not agree, however, with Spivey's second argument that he was not convicted of a criminal offense against a victim who is a minor within the meaning of OCGA § 42-1-12(a)(4)(B). The sexual offender registry act defines a "criminal offense against a victim who is a minor" in OCGA § 42-1-12(a)(4)(B) as

any criminal offense . . . which consists of:

(i) Kidnapping of a minor, except by a parent;

(ii) False imprisonment of a minor, except by a parent;

(iii) Criminal sexual conduct toward a minor;

(iv) Solicitation of a minor to engage in sexual conduct;

(v) Use of a minor in a sexual performance;

(vi) Solicitation of a minor to practice prostitution;

(vii) Use of a minor to engage in any sexually explicit conduct to produce any visual medium depicting such conduct;

(viii) Creating, publishing, selling, distributing, or possessing any material depicting a minor or a portion of a minor's body engaged in sexually explicit conduct;

(ix) Transmitting, making, selling, buying, or disseminating by means of a computer any descriptive or identifying information regarding a child for the purpose of offering or soliciting sexual conduct of or with a child or the visual depicting of such conduct;

(x) Conspiracy to transport, ship, receive, or distribute visual depictions of minors engaged in sexually explicit conduct; or

(xi) Any conduct which, by its nature, is a sexual offense against a minor.

All three of Spivey's convictions fall within this definition.

2. Spivey's argument that his attempt convictions are not criminal offenses against a victim who is a minor has two possible interpretations. The broader argument is that the statute does not apply to attempt convictions. This interpretation of the statute requires a completed offense against a victim who is a minor. The narrower argument is that the statute does not apply to criminal attempt convictions where no actual minor was involved in the attempt. Both arguments fail.

(a) First, the broad argument that the statute does not apply to attempt convictions is contrary to the statute's language and legislative intent. The plain language of the statute includes "criminal offense[s]"; a criminal attempt is a criminal offense. OCGA § 16-4-1. Nowhere in the statute is there a limitation to completed offenses against victims who are minors. The sexual offender registry act includes any convictions for criminal offenses against a victim who is a minor. OCGA § 42-1-12(a)(4)(B).

Spivey's attempt convictions also fall within the definition of a "criminal offense against a victim who is a minor." OCGA § 42-1-12(a)(4)(B). Child molestation² and enticing a child for indecent purposes³ are included in the sexual offender registry definition of "offenses against a victim who is a minor." OCGA § 42-1-12(a)(4)(B). They are criminal offenses under Title 16 of the Official Code of Georgia Annotated which consist of "criminal sexual conduct toward a minor[,] solicitation of a minor to engage in sexual conduct [or] . . . conduct which, by its nature, is a sexual offense against a minor." OCGA § 42-1-12(a)(4)(B)(iii), (iv), (xi).

(b) The narrower argument that the statute does not apply to attempt convictions in which no actual minor was a victim also is not persuasive. Interpreting the statute to require an actual victim who is a minor creates an unreasonable exception from liability, which is not supported by the language or intent of the statute. First, the statute's broad language explicitly includes any criminal offense, which consists of criminal sexual conduct toward a minor, solicitation of a minor, or any conduct which is a sexual offense against a minor. OCGA § 42-1-12(a)(4)(B). Second, imposing such a limitation would be contrary to the legislative intent of the act, which is to protect the community by notifying it of individuals who may pose a threat. Individuals convicted of a criminal attempt are not necessarily less of a threat because they were prevented from completing their intended crimes.

There is no reasonable way to interpret the sexual offender registry statute to exclude attempts where no actual child victim was involved. A completed offense for child molestation or enticing a child for indecent purposes would require an actual victim who is a minor because a child victim is an element of these completed offenses. However, an actual child victim is not a required element in a criminal attempt to commit these crimes.

Criminal attempt liability⁴ is created where the perpetrator intends to commit the crime, and then takes a "substantial step" toward committing the crime. Adams v. State, 178 Ga.App. 261, 263(2)(b), 342 S.E.2d 747 (1986). The intent and the substantial steps establish a criminal attempt even if it is impossible to complete the intended crime.⁵ See OCGA § 16-4-4 ("It is no defense to a charge of...