State v. Dean

• Decision Date: 17 October 2019
• Docket Number: A19A1359
• Parties: The STATE v. DEAN.
• Court: Georgia Court of Appeals

352 Ga.App. 356

835 S.E.2d 15

The STATE

v.DEAN.

A19A1359

Court of Appeals of Georgia.

October 17, 2019

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Dustin J. Lee, Teri B. Walker, Assistant District Attorney, for appellant.

Lauren B. Shubow, Michael D. Hill, for appellee.

Dillard, Presiding Judge.

The State appeals the Superior Court of Fulton County’s decision to transfer this case against Ghohaun Dean to juvenile court. Specifically, the State argues that the superior court erred in (1) its application of OCGA § 15-11-560 and OCGA § 15-11-562 by making clearly erroneous factual findings, and (2) failing to properly weigh all of the factors it was required to consider under OCGA § 15-11-562. Because we agree with the State that the superior court made an unsupported factual finding as to one of the transfer factors or failed to fully consider that factor, we vacate and remand for additional proceedings consistent with this opinion.

The record shows that on February 28, 2018, Dean was indicted¹ on one count of aggravated sodomy² and one count of sexual battery of a child under the age of 16.³ The indictment alleged that Dean committed aggravated sodomy by performing a "sexual act involving [his] sexual organ and the anus of [the alleged victim], a child under ten (10) years of age, by penetrating her anus with his male sex organ[,]" and sexual battery by making "physical contact with the buttocks of the body of [the alleged victim], a child under the age of 16 years, without her consent." These acts were allegedly committed in August and September 2017, respectively.

According to the arrest affidavit, the above incidents occurred when Dean was 14 years old and the alleged victim, A. D., was two years old. At the time, Dean was staying overnight at his grandmother’s house with his two brothers. A. D. is a sister to Dean’s two brothers, but she and Dean have no biological connection. Dean allegedly committed aggravated sodomy when A. D. was sleeping alone while her father was at work. The next morning, when A. D.’s father changed her diaper, she whimpered, and he found what appeared to be blood and semen in the diaper. A subsequent medical examination confirmed that A. D.’s anus sustained tearing and lacerations, indicating that she had been sodomized by someone. After receiving stitches and spending several days in the hospital, A. D. went to stay with her mother, to whom she confided that Dean hurt her.

Following the indictment, Dean moved to transfer his case from superior court to juvenile court. Dean argued that—due to a history of mental health and emotional problems, including a learning disability and having lower cognitive function—he "should not be held to the accountability that is inherent in the prosecution of juveniles in [s]uperior [c]ourt." And prior to ruling on the motion, the superior court ordered pretrial services to prepare a transfer report, which was to contain additional information it could use to decide whether to grant Dean’s motion. Then, following a series of hearings on the matter, on June 16, 2018, the superior court transferred the action to juvenile court. This appeal by the State follows.⁴

1. The State argues that the superior court erred in its application of OCGA § 15-11-560 and OCGA § 15-11-562 by making clearly erroneous factual findings.

Our Juvenile Code provides that juvenile courts, with limited exception,

...have concurrent jurisdiction with the superior court over a child who is alleged to have committed a delinquent act which would be considered a crime if tried in a superior court and for which an adult may be punished by loss of life, imprisonment for life without possibility of parole, or confinement for life in a penal institution.⁵

The exception to this concurrent jurisdiction provides that superior courts have "exclusive original jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed" murder, murder in the second degree, voluntary manslaughter, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, armed robbery with a firearm, aggravated assault upon a public safety officer that is committed using a firearm, and aggravated battery upon a public safety officer.⁶

Notwithstanding the exclusive original jurisdiction of superior courts over these types of juvenile cases, a superior court is authorized to transfer some of them to juvenile court⁷ —i.e. , those involving voluntary manslaughter, aggravated sodomy, aggravated child molestation, aggravated sexual battery, and aggravated assault and battery on a public safety officer.⁸ But before ordering such a transfer, the superior court must first consider—but is not limited to considering—the following criteria:

(1) [t]he age of such child; (2) [t]he seriousness of the alleged offense, especially if personal injury resulted; (3) [w]hether the protection of the community requires transfer of jurisdiction; (4) [w]hether the alleged offense involved violence or was committed in an aggressive or premeditated manner; (5) [t]he impact of the alleged offense on the alleged victim, including the permanence of any physical or emotional injury sustained, health care expenses incurred, and lost earnings suffered; (6) [t]he culpability of such child including such child’s level of planning and participation in the alleged offense; (7) [w]hether the alleged offense is a part of a repetitive pattern of offenses which indicates that such child may be beyond rehabilitation in the juvenile justice system; (8) [t]he record and history of such child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions, and other placements; (9) [t]he sophistication and maturity of such child as determined by consideration of his or her home and environmental situation, emotional condition, and pattern of living; (10) [t]he program and facilities available to the juvenile court in considering disposition; and (11) [w]hether or not a child can benefit from the treatment or rehabilitative programs available to the juvenile court.⁹

The State argues that the superior court erred in its application of the foregoing statutes by making erroneous factual findings in support of its decision to transfer Dean’s case from superior court to juvenile court. In reviewing a superior court’s decision to transfer jurisdiction, "the function of this Court is limited to ascertaining whether there was some evidence to support the [superior] court’s determination, and absent an abuse of discretion, we will affirm the order transferring jurisdiction."¹⁰

The State specifically takes issue with the superior court’s conclusions that (1) the alleged victim had made a full recovery, and (2) Dean would benefit from proceeding in the juvenile justice system. We will consider both of these findings in turn.

(a) The Victim’s Recovery . The State contends that no facts were presented during the superior court’s consideration of the motion to transfer to support its finding that A. D. "has apparently recovered." The State acknowledges that its representative at one of the hearings on the motion characterized A. D. as having no permanent physical injuries, but argues that the testimony presented by a physician who examined A. D. did not support a finding that the child had fully recovered. Specifically, the physician testified that A. D.’s initial injuries were among the most severe he had ever observed. And at the time of a reexamination a few weeks after the incident, the physician noted that A. D. had "improved," but her mother and grandmother reported that the child was still having difficulties with and exerting resistance to being bathed or changed. A. D. also resisted the follow-up examination. The State later argued that the child’s resistance to being bathed or changed was evidence of an ongoing emotional injury.

On appeal, the State maintains that the superior court entirely disregarded the potential psychological injury inflicted upon A. D. when it only asked the assistant district attorney if the child had any permanent physical injuries, and specifically noted that it was "not talking about psychological injuries."¹¹ Indeed, in its order granting the motion to transfer, the superior court concluded that A. D. "suffered no permanent physical injuries." The court also noted that A. D. "received a few weeks of counseling immediately following the incident" but her "mother elected to discontinue the counseling."

And in the transfer report created by pretrial services at the superior court’s request, the pretrial officer indicated that she had spoken to A. D.’s mother, who informed her that the child "still randomly mentions the incident and that counseling had occurred for a few weeks initially, but [she] discontinued due to [A. D.] not participating at a level that seemed helpful at that time."

It appears, then, that A. D. has sustained ongoing psychological injuries, and the superior court’s findings of fact and comments on the record suggest that it only considered the permanence of physical injuries when making its decision. Suffice it to say, to the extent that the court concluded that A. D. had "apparently recovered," the record evidence of psychological recovery appears to be far more nuanced. And as a result of the court’s failure to reach a conclusion on this particular aspect of the question of permanent injuries, we vacate this portion of its order and remand for additional findings of fact as to the potential evidence of ongoing psychological or emotional injury to A. D. In doing so, the court is to consider the "impact of the alleged offense on the alleged victim, including the permanence of any physical or emotional injury sustained , health care expenses incurred, and lost earnings suffered."¹²

(b) Benefit of Proceeding in Juvenile Justice System. The State further argues that the superior court made unsupported...