Walker v. State

• Decision Date: 25 June 2021
• Docket Number: A21A0591
• Citation: 360 Ga.App. 211,860 S.E.2d 868
• Court: Georgia Court of Appeals
• Parties: WALKER v. The STATE.

360 Ga.App. 211

860 S.E.2d 868

WALKER

v.The STATE.

A21A0591

Court of Appeals of Georgia.

June 25, 2021

Daniel Ethan Wells, for Appellant.

Darius T. Pattillo, Sharon Lee Hopkins ADA, Duluth, for Appellee.

Miller, Presiding Judge.

A Henry County jury found Joseph Gene Walker guilty of a violation of a sexual offender restriction, child molestation, loitering and prowling, public indecency, public drunkenness, and obstruction of an officer. The trial court imposed a 30-year sentence, with the first 15 years to be served in confinement and the remainder to be served on probation. Walker appeals from his convictions and sentence, arguing that (1) the evidence was insufficient to sustain his conviction for violation of a sexual offender restriction; (2) his trial counsel rendered ineffective assistance of counsel by failing to file a demurrer to the violation of a sexual restriction offense; (3) the trial court erred by denying his motion to bifurcate the proceedings; (4) the trial court erred by allowing the State to present victim impact testimony in the guilt phase of his trial; and (5) the cumulative effect of the errors warrants a new trial. For the reasons that follow, we reverse Walker's conviction for violation of a sexual offender restriction, but we affirm Walker's remaining convictions.

Viewed in the light most favorable to the jury's verdicts,¹ the record adduced at trial shows that in July 2017, Donique Goode lived with her four year-old son at the Echelon Park Apartments in Henry County, Georgia, and Goode's 16 year-old niece, Danira West, visited her that summer. While Goode was at work on July 29, 2017, West took Goode's 4 year-old son to the park across from the home and noticed that a man, whom she later identified as Walker, watched her as she played with Goode's son. As West continued to play with Goode's son at the playground, West saw Walker touch his penis. West testified that Walker's penis was out of his pants, that she saw Walker's penis as he "touched" it, and she described Walker's movements as him "shaking his penis." West said that it appeared that Walker wanted her to see him touching his penis, and he continued touching his penis as he walked up a nearby stairway. West then called Goode who then called 911.²

Michael Blythe, a police officer with the McDonough Police Department, was dispatched to the playground. As Officer Blythe drove around the apartment complex searching for Walker, West flagged him down, told him that her aunt had called 911, and recounted to him Walker's actions. While speaking with Officer Blythe, West saw Walker nearby and pointed him out to Officer Blythe, and Officer Blythe ordered Walker to come out from among the bushes. At that point, Walker took off running in another direction, and Officer Blythe and another officer who responded to the playground chased after Walker as he continued to flee the area. After Walker was apprehended, Officer Blythe smelled the odor of alcohol from Walker and asked him if he had been drinking, and Walker answered that he had drunk a margarita.

Walker was indicted on one count of violation of a sexual offender restriction ( OCGA § 42-1-15 ), two counts of child molestation ( OCGA § 16-6-4 (a) ), one count of loitering or prowling ( OCGA § 16-11-36 ), one count of public indecency ( OCGA § 16-6-8 ), one count of public drunkenness ( OCGA § 16-11-41 ), and one count of obstruction of an officer ( OCGA § 16-10-24 (a) ). The jury found Walker guilty on all counts, and the trial court imposed a 30-year sentence, with the first 15 years to be served in confinement and the remainder to be served on probation. Walker subsequently filed a motion for new trial, which the trial court denied after a hearing. This appeal followed.

1. First, Walker argues that the evidence was insufficient to sustain his conviction for violation of a sexual offender restriction because the State failed to present evidence that he committed a crime that required registration on or after July 1, 2008. After a close review of the relevant statutory provisions, we agree and reverse Walker's conviction on this count.

Ordinarily, when reviewing a sufficiency of the evidence claim, the standard we apply is "whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." (Citation omitted.) Little v. State , 332 Ga. App. 553 (1), 774 S.E.2d 132 (2015). Because Walker's sufficiency of the evidence claim primarily involves the interpretation of a statute, however, "[a]s in all appeals involving the construction of statutes, our review is conducted under a de novo standard." (Citation omitted.) Williams v. State , 299 Ga. 632, 633, 791 S.E.2d 55 (2016).

"Pursuant to the rules of statutory construction, we presume that the General Assembly meant what it said and said what it meant." Williams , supra, 299 Ga. at 633, 791 S.E.2d 55. Additionally,

[i]n statutory interpretation cases such as this, it is well settled that a statute draws its meaning from its text. When interpreting a statute, we must give the text its plain and ordinary meaning, view it in the context in which it appears, and read it in its most natural and reasonable way. For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.

(Citations and punctuation omitted.) State v. Coleman , 306 Ga. 529, 530, 832 S.E.2d 389 (2019).

Here, Count 1 of the indictment alleged that Walker violated OCGA § 42-1-15, which states in relevant part that "it shall be unlawful for any individual or for any person who is or should be registered on another state's sexual offender registry to loiter, as prohibited by Code Section 16-11-36, at any child care facility, school, or area where minors congregate." OCGA § 42-1-15 (d). As reflected above, this particular subsection of the statute, by itself, does not contain any date limitations or constraints as to when the defendant's prior act occurred. In looking at the statutory scheme, however, we note that OCGA § 42-1-15 is titled in part: "Restrictions on residence of or loitering by registered sex offender for acts committed after July 1, 2008 [.]" (Emphasis supplied.)

Moreover, in looking at the structure of OCGA § 42-1-15, we note that this statute is situated next to two similar statutory provisions within the same article that have nearly identical titles and provisions, but contain different date limitations. OCGA § 42-1-16 is titled in part, "[r]estrictions on residence of or loitering by registered sex offender for acts committed between July 1, 2006 and June 30, 2008[,]" and contains several provisions within the statute that specify date limitations.³ Notably, OCGA § 42-1-15 and OCGA § 42-1-16 both contain identical provisions prohibiting an individual who is required to register from loitering at any child care facility, school, or area where minors congregate.⁴ Further, OCGA § 42-1-17 is partly titled, "[r]estrictions on residence of or loitering by registered sex offender for acts committed between June 4, 2003 and June 30, 2006[.]" That statute also contains several provisions with date limitations.⁵

Based on our analysis of the statutory scheme, we are compelled to conclude that OCGA § 42-1-15 (d) only applies to acts requiring registry that were committed on or after July 1, 2008. The legislature titled OCGA § 42-1-15 as "[r]estrictions on residence of or loitering by registered sex offender for acts committed after July 1, 2008[,] " and the legislature enacted other statutes with similar or identical provisions within the same article that expressly contain date limitations, which evinces an intent on the part of the legislature that OCGA § 42-1-15 and the loitering prohibition therein only applies to those who are required to register for acts that were committed during a specific time period.

We reject the State's argument that the legislature did not intend for the date limitation to apply to the entire statute. The State's argument is based on the fact that, because Walker was an "individual"⁶ under OCGA § 42-1-15 and therefore required to register as a sexual offender, the prohibition against loitering by an "individual" in OCGA § 42-1-15 (d) was applicable to Walker. We do not construe OCGA § 42-1-15 in such a manner. We note that OCGA § 42-1-16 (a) (2) also defines "individual" in the same manner as OCGA § 42-1-15 (a) (1), and it also contains an identical provision to OCGA § 42-1-15 (d) that prohibits sexual offenders from loitering. See OCGA § 42-1-16 (d) (prohibiting sexual offenders from loitering at any child care facility, school, or areas where minors congregate). In construing statutes, we adhere to the fundamental principle "that require[s] us to construe the statute[s] according to [their] terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage." (Citation omitted.) Coates v. State , 304 Ga. 329, 330, 818 S.E.2d 622 (2018). Additionally, "all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with existing law[,]" "and we [do] not presume that the legislature intended that any part of the criminal code to be without meaning[.]" (Citations and punctuation omitted.) Mahone v. State , 348 Ga. App. 491, 495-496 (2), 823 S.E.2d 813 (2019). Because the State's interpretation of OCGA § 42-1-15 (d) would render OCGA § 42-1-16 (d) meaningless and mere surplusage, we reject the State's...