State v. Randle

• Decision Date: 05 March 2015
• Docket Number: No. A14A1676.,A14A1676.
• Citation: 331 Ga.App. 1,769 S.E.2d 724
• Parties: The STATE v. RANDLE.
• Court: Georgia Court of Appeals

331 Ga.App. 1
769 S.E.2d 724

The STATE
v.
RANDLE.

No. A14A1676.

Court of Appeals of Georgia.

March 5, 2015.

769 S.E.2d 726

Peter J. Skandalakis, Dist. Atty., La Grange, Robert William Mooradian, Asst. Dist. Atty., for Appellant.

Christa Lea Kirk, The Kirk Law Firm, for Appellee.

Opinion

BARNES, Presiding Judge.

The trial court granted Petitioner Randle's request to be released from Georgia's sex offender registration requirements. The State filed an application for discretionary appeal, which we granted. This appeal followed in which the State contends that because Randle's underlying sexual offense involved physical contact with the genitals of the victim, it created a presumption that the victim suffered “intentional physical harm,” precluding Randle's release from the registration requirements. See OCGA §§ 17–10–6.2(c)(1)(D) ; 42–1–19(a)(4). The State also argues more generally that Randle had the burden to establish a prima facie case for release from the registration requirements but failed to satisfy it. For the reasons discussed below, we conclude that the trial court did not abuse its discretion in releasing Randle from the registration requirements and therefore affirm.

The record reflects that in 1993, Randle entered a negotiated plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to one count of child molestation. The indictment alleged that in 1991, Randle committed an act of child molestation by placing his hands on the genitals of a minor. Randle was 21 years old at the time of his conviction. The trial court sentenced Randle to eight years, with the first three years to be served in confinement and the remaining five years on probation. As a result of his conviction and sentence, Randle was required to register as a sex offender in Georgia under the provisions of OCGA § 42–1–12.¹

769 S.E.2d 727

Randle served his sentence and was released from probation in 2001. In 2002, Randle applied for and obtained restoration of his civil and political rights (excluding certain firearm-related rights) from the State Board of Pardons and Paroles. In 2013, Randle filed a petition for release from the sex offender registration requirements pursuant to OCGA § 42–1–19(a)(4).

The trial court conducted a hearing on Randle's petition. At the hearing, Randle tendered certified copies of his indictment and sentence for child molestation, the transcript of his plea hearing for that offense, and his criminal history from the Georgia Crime Information Center reflecting no other arrests or convictions. The parties stipulated that Randle had completed all sex offender treatment and assessments required as part of his probation; that he had not committed any probation violations; that he “did well while on probation and as well in his treatment”; and that he had no additional criminal history.

Randle, then 42 years old, testified that he has had physical custody of his 14–year–old daughter for 5 years, has been working in the technology field for 15 years and provides for himself and his daughter, and continued treatment after his probation ended because he “felt that it was very helpful.” Randle testified that based on what he had learned in his treatment, he “will not put [him]self in a position where anything like this could happen again or even the perception of this [could] happen again.” Randle further testified that he has never committed any other offenses and has properly registered as a sex offender every year as required. Randle explained that he wanted to be removed from the sex offender registry so that his daughter would not be bullied by others who might find his registration online. Randle also noted that he would come home and find signs in his yard with his picture on it that stated such things as “sex offender lives here.”

On cross-examination, Randle admitted that he had pled guilty under Alford to putting his hands on the genitals of a minor and that there had been physical contact between himself and the victim. Randle further admitted on cross-examination that in light of the victim's age, the victim probably did not like or want the contact.

Randle was the only person to testify at the hearing. The State did not present any evidence, but the prosecutor argued that Randle should not be released from the sex offender registration requirements because he had the burden of making out a prima facie case that the criteria for release had been met but had failed to do so. According to the prosecutor, the evidence of Randle's touching of the child victim's genitals with his hands created a presumption that the victim suffered “intentional physical harm” such that the requirement imposed by OCGA § 17–10–6.2(c)(1)(D) for release had not been met. See OCGA § 42–1–19(a)(4).

At the conclusion of the hearing, the trial court remarked that while the court had never before released someone from the sex offender registration requirements, the court would grant Randle's petition under the circumstances here. The trial court noted that Randle's offense occurred 21 years ago, there had been no other incidents since that time, and that based on Randle's testimony at the hearing, the court was “convinced that this will never happen again.” The trial court subsequently entered an order granting Randle's petition for release from the sex offender registration requirements pursuant to OCGA § 42–1–19(a)(4). The State filed an application for discretionary appeal of the trial court's order, and this Court granted the application, resulting in this appeal.

Before turning to the specific arguments raised by the State on appeal, we first address the statutory framework applicable in this case. Under Georgia law, a defendant who is required to comply with the sex offender registration requirements imposed by OCGA § 42–1–12 must do so for his entire life. OCGA § 42–1–12(f)(6). However, a defendant may petition to be released from the lifetime registration requirements in accordance

769 S.E.2d 728

with OCGA § 42–1–19. OCGA § 42–1–12(g). Pursuant to OCGA § 42–1–19, a defendant may file such a petition if ten years have elapsed since he completed his term of imprisonment, parol, supervised release, and probation for the underlying sexual offense, and if the six criteria set forth in OCGA § 17–10–6.2(c)(1)(A) through (c)(1)(F) have been met. OCGA § 42–1–19(a)(4), (c)(2)(A). Those six criteria are:

(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(C) The court has not found evidence of a relevant similar transaction;

(D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim; and

(F) The victim was not physically restrained during the commission of the offense.

OCGA § 17–10–6.2(c)(1). If these criteria are met, and “if the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense,” the trial court may enter an order releasing the defendant from the registration requirements. OCGA § 42–1–19(f).

If requested by the defendant who is petitioning for release from the registration requirements, the trial court must conduct a hearing on the petition. OCGA § 42–1–19(e). At the hearing, the trial court may consider any evidence introduced by the petitioner, prosecutor, or sheriff, as well as “[a]ny other relevant evidence.” OCGA § 42–1–19(d)(3).

The trial court's decision whether to grant a petition for release from the registration requirements is reviewed on appeal for an abuse of discretion. See In re Baucom, 297 Ga.App. 661, 663(1), 678 S.E.2d 118 (2009) ; Miller v. State, 291 Ga.App. 478, 479(1), 662 S.E.2d 261 (2008). Under this standard, we review the trial court's legal conclusions de novo, and we uphold the trial court's findings on disputed facts and witness credibility as long as they are not clearly erroneous, i.e., as long as the factual findings are supported by any evidence. See Miller, 291 Ga.App. at 479, 662 S.E.2d 261. See generally Lawrence v. Lawrence, 286 Ga. 309, 310(1), 687 S.E.2d 421 (2009) (discussing abuse of discretion standard of review). Mindful of these standards, we turn to the State's arguments.

1. The State argues that the trial court abused its discretion in releasing Randle from the sex offender registration requirements because the evidence failed to show that “[t]he victim did not suffer any intentional physical...