307 Ga. 179 FINAL COPY
S19A0684. DADDARIO v. THE STATE.
BOGGS, Justice.
Appellant Lawrence Daddario challenges his conviction and
sentence of life in prison for aggravated child molestation for having
sexual intercourse with his 14-year-old daughter, which resulted in
a very painful and potentially life-threatening childbirth
approximately nine months later. Appellant does not dispute having
sexual intercourse with his daughter but claims that he committed
only child molestation, not aggravated child molestation, because
aggravated child molestation requires an act that “physically
injures” the child, OCGA § 16-6-4 (c), and pregnancy and childbirth
usually are not considered to be physical injuries. He also claims
that his aggravated child molestation conviction violates due
process, because the statute is unconstitutionally vague regarding whether an act of child molestation that causes a child under the
age of 16 to endure childbirth can “physically injure[ ]” the child.
Alternatively, he claims that he is entitled to a new trial on the
aggravated child molestation charge due to the erroneous admission
at trial of incriminating statements that he made to a volunteer
court-appointed special advocate (“CASA”) who spoke with him
when he was in jail and represented by counsel in his criminal case
without first advising him of his rights under Miranda v. Arizona,
384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
As explained below, in every prosecution for aggravated child
molestation based on physical injury to the child, the State must
present evidence sufficient to enable a rational jury to find beyond a
reasonable doubt that the defendant committed an act of child
molestation and that the act proximately caused physical injury to
the child. Appellant asks this Court to hold that evidence related to
a resulting pregnancy or childbirth is never legally sufficient under
Georgia law to support a jury finding that an act of child molestation
caused physical injury to the child, while the State asks us to hold
2 that evidence of a pregnancy or childbirth alone is always sufficient
to support such a finding. We instead hold that whether an act of
molestation proximately caused physical injury to the child victim is
a question of fact to be decided by the jury based on the evidence
presented at trial and is not dictated by per se rules like the ones
sought by Appellant and the State, which do not appear in the text
of the aggravated child molestation statute. And we hold that the
evidence here — which showed that Appellant’s act of child
molestation proximately caused his daughter to endure a very
painful and physically traumatic childbirth nine months later — is
legally sufficient to support a jury finding of the physical injury
element of aggravated child molestation.1
We also reject Appellant’s claim that the aggravated child
molestation statute violates due process because it is
1 Appellant frames his arguments in terms of either childbirth or a pregnancy. Given the childbirth that Appellant proximately caused his underage daughter to endure through his act of child molestation, we need not decide here whether proof of pregnancy itself would be sufficient, standing alone, to support a jury finding of the physical injury element of aggravated child molestation. 3 unconstitutionally vague as applied to his conduct with his 14-year-
old daughter, as well as his claim that the trial court erred in
admitting at trial the incriminating statements that he made to the
CASA volunteer. Accordingly, we affirm Appellant’s conviction and
sentence for aggravated child molestation.2
1. (a) Viewed in the light most favorable to the verdicts,
the evidence presented at trial showed as follows regarding
Appellant’s conviction for aggravated child molestation. Appellant’s
daughter, S. D., was born in April 2000, and she lived with Appellant
and her two brothers, who were around her same age.
When S. D. was in the fifth grade, an elementary school teacher
saw Appellant kiss S. D. on the lips in a manner that the teacher
had never seen between a parent and child and that “[f]reaked out”
and “[d]isgusted” the teacher. In September 2014, at the beginning
of eighth grade, Appellant pulled S. D. out of school, ostensibly for
2 Appellant also was convicted of two counts of second degree cruelty to
children to his daughter and to her two brothers and sentenced to a total of 20 years consecutive for the two cruelty to children convictions. He does not challenge those convictions and sentences here, so we do not address them. 4 homeschooling. By then, S. D. could not remember how long her
father had been having sexual intercourse with her, but she said it
seemed like it had been “[e]very day” for her “whole life.” Appellant
did not wear a condom when he had sexual intercourse with S. D.
He told her that it was right for them to have sex with each other,
that no one would think that it was “weird,” and that she should
have sex with him because she was too “ugly” ever to have a
boyfriend.
In early November 2014, Appellant impregnated S. D. He
threatened to kill her if she told anyone that he was the father. S.
D. wanted to get an abortion, but Appellant said no. In mid-January
2015, Appellant took S. D. to a faith-based pregnancy resource
center that did not provide abortion services. A week later, a
sonographer at the resource center performed an ultrasound on S.
D. and determined that S. D. was around 12 weeks pregnant.
The resource center notified the sheriff’s office, because S. D.
was only 14 years old. The ensuing investigation uncovered evidence
that Appellant neglected S. D. and her brothers, and in March 2015,
5 Appellant was arrested for second degree cruelty to children. The
local Department of Family and Children Services took S. D. and her
brothers into custody, and the juvenile court appointed a CASA
volunteer for the children.
S. D. was put into foster care, and in mid-May 2015, she finally
broke down and told her foster mother that Appellant was the baby’s
father. The CASA volunteer talked to S. D. several times about the
disclosure, but it was very hard for S. D. to share anything about
what had happened to her. In June 2015, the CASA visited
Appellant at the jail to get more information from him about what
happened to S. D. so that the CASA could better help S. D. During
the course of the conversation, which the jail recorded, Appellant
admitted to the CASA that he had sexual intercourse with S. D.
more than once.
In early August 2015, S. D. started having contractions, and
her foster mother took her to the hospital. After several hours, they
were sent home, because S. D.’s contractions were starting and
stopping too far apart for her to be admitted to the hospital. That
6 evening, S. D. awoke in the middle of the night and told her foster
mother that the baby was coming. S. D. sat down in a recliner, and
the baby suddenly emerged still enclosed in the amniotic sac. S. D.’s
foster mother called 911, and an ambulance soon arrived to take S.
D. and the baby to the hospital.
According to S. D.’s foster mother, the doctor later told her that
the reason the baby emerged so quickly was because it was born
inside an intact amniotic sac. S. D.’s foster mother explained: “If the
sac doesn’t break, they more or less just come out. The downside to
that is, it tears you all apart.” When asked if she saw any kind of
injury to S. D., S. D.’s foster mother said, “You couldn’t help but see
it,” because S. D.’s vaginal area was severely torn, and S.D. was
bleeding profusely. S. D.’s foster mother described the scene as
“traumatic,” stating that she “had never seen so much blood,” and
she was told that if she had tried to drive S. D. to the hospital instead
of calling an ambulance, S. D. “would have bled to death.” S. D. was
asked at trial if she had any tearing or needed any stitches after the
baby was born, and she replied, “The lady at the hospital said it was
7 like plastic surgery.” She also testified that she experienced a great
deal of pain for weeks after the birth. S. D.’s foster mother confirmed
that S. D. had to have numerous stitches, and that S. D. “had pain
for about six weeks” after the birth, for which S. D. was given
prescription pain medication.
DNA samples were taken from the baby at the hospital. DNA
testing later confirmed that Appellant was the baby’s father.
(b) On August 12, 2015, Appellant was indicted for
aggravated child molestation, incest, statutory rape, and two counts
of second degree cruelty to children. The aggravated child
molestation count alleged that in early November 2014, Appellant
did perform an immoral and indecent act with [S. D.], a child under the age of 16 years, in that said accused did have sex with [S. D.] with the intent to arouse and satisfy the sexual desires of said accused and said child, said act resulting in physical injury to said child in violation of O.C.G.A. § 16-6-4.
Appellant filed a combined motion to quash and special
demurrer, asserting among other things that the aggravated child
molestation count was defective due to a lack of specificity. The trial
8 court held a hearing, but before the court issued a ruling, the State
obtained a superseding indictment. The superseding indictment
contained identical charges, except that the aggravated child
molestation count specified that the “sex” was “sexual intercourse,”
which resulted in “physical injury to said child by impregnating her
causing said child to endure childbirth.”
Appellant filed a second motion to quash and special demurrer.
The trial court held a hearing, and Appellant argued “on statutory
interpretation grounds . . . that the injury element of aggravated
child molestation cannot be proven through pregnancy and
childbirth.” He also argued that the aggravated child molestation
statute was unconstitutionally vague as applied to him, because a
person of ordinary intelligence who read the aggravated child
molestation statute “would not have thought at that time that
childbirth or pregnancy would constitute an injury under the . . .
statute.” The trial court denied the motion to quash and special
demurrer.
9 The State filed a motion in limine to admit Appellant’s
jailhouse statements to the CASA volunteer. The State
acknowledged that the CASA interviewed Appellant without first
advising him of his Miranda rights but argued that Appellant’s
statements to the CASA were admissible, because she went to the
jail to speak with Appellant of her own volition and not at the
direction of any State actor, and the statements were voluntarily
made. The State analogized the situation to the scenario where a
relative visits a defendant in jail and then contacts the State
afterward to relay incriminating statements that the defendant
made.
The trial court held an evidentiary hearing on the State’s
motion in limine, at which both the CASA volunteer and the lead
investigator in Appellant’s criminal case testified. The court then
entered an order ruling that Appellant’s statements were
admissible. The court found that Appellant made the statements
freely and voluntarily, and that the CASA volunteer was not a
government employee or the functional equivalent of a law
10 enforcement officer. The court further found that the CASA
volunteer went to the jail to speak with Appellant in her capacity as
an advocate for the children, and that she was not acting as an
interrogator for purposes of the criminal investigation. The court
later entered a supplemental order finding that the CASA was
genuinely concerned for the children’s physical and emotional
wellbeing, that she did not at any time portray herself as an officer
of the law, and that she was not sent to the jail “to extract
incriminating statements from [Appellant] at the behest of any law
enforcement officer.”
Appellant was tried from August 15 to 19, 2016. At the close of
the evidence, the trial court instructed the jury on the statutory
elements of child molestation and aggravated child molestation as
well as the language of the aggravated child molestation charge in
the indictment. The court told the jury that the State had the burden
to prove “every material allegation of the criminal charges and every
essential element of the crimes charged,” and that the jury must
decide whether the State proved that Appellant committed the
11 charged offenses in the manner specified in the indictment. The
court also told the jury that for the offense of aggravated child
molestation, the State “must prove beyond a reasonable doubt that
the alleged child victim was physically injured by the act of child
molestation,” and that “[t]he element of injury required for
aggravated child molestation can be proven through evidence that
the child experienced pain during the crime, even without
corroborating medical evidence.” The court further instructed the
jury that “[p]regnancy and childbirth may constitute the physical
injury required as an element of aggravated child molestation
provided you, the jury, find it to be sufficient by evidence beyond a
reasonable doubt to convince you that the alleged victim suffered
physical injury caused by an act of child molestation.” (Emphasis
supplied.)3
The jury found Appellant guilty of all charges. The trial court
sentenced Appellant to serve life in prison for aggravated child
3 Appellant has not raised any claim of error regarding the jury instructions. 12 molestation and a total of 20 years consecutive for the two child
cruelty convictions. The court merged the incest and statutory rape
counts into the aggravated child molestation conviction.4
Appellant filed a timely motion for new trial, which he later
amended. After a hearing, on November 29, 2018, the trial court
entered an order denying the motion. Appellant filed a timely notice
of appeal directed to this Court based on his challenge to the
constitutionality of the aggravated child molestation statute. The
case was orally argued on May 8, 2019.
2. Appellant claims that his conviction for aggravated child
molestation is invalid as a matter of law, because a pregnancy or
childbirth — no matter how painful, and no matter how much
damage it does to the child victim’s body — is not a physical injury
within the meaning of Georgia’s aggravated child molestation
statute. In a related argument, he claims that the aggravated child
molestation statute is unconstitutionally vague regarding whether
4 The State did not cross-appeal the trial court’s merger ruling. We express no opinion on whether the trial court erred in that regard. 13 an act of child molestation that causes a child under the age of 16 to
endure childbirth can “physically injure[ ]” her. OCGA § 16-6-4 (c).
Both claims lack merit, as they erroneously conflate a statutory
element of aggravated child molestation with specific mechanisms
of injury.
(a) In Georgia, all crimes are defined by statute, see OCGA §
16-1-4, and every crime has as elements an actus reus and a mens
rea, see OCGA § 16-2-1 (a) (“A ‘crime’ is a violation of a statute of
this state in which there is a joint operation of an act or omission to
act and intention or criminal negligence.”). See also In re Jefferson,
283 Ga. 216, 218 (657 SE2d 830) (2008) (“‘Like all crimes, [criminal]
contempt has an act requirement (actus reus) and a mental
component (mens rea).’” (citation omitted)). In addition, crimes are
often defined to include as elements the presence or absence of
certain “attendant circumstances.” 1 Wayne R. LaFave, Substantive
Criminal Law §§ 1.2 (c), 6.3 (b) (3d ed. Oct. 2018 update) (hereinafter
“LaFave”). See Bowman v. State, 258 Ga. 829, 831 & n.4 (376 SE2d
187) (1989). For instance, “bigamy requires a previous marriage,
14 [and] statutory rape that the girl be under age.” 1 LaFave § 1.2 (c).
See OCGA §§ 16-6-3 (defining statutory rape), 16-6-20 (defining
bigamy). Crimes are sometimes defined to require, as an additional
element, that the conduct produce some “particular result.” 1
LaFave § 1.2 (b). The most obvious example is murder, which
requires that the conduct result in death. See id. § 1.2 (c); Baker v.
State, 250 Ga. 671, 672 (300 SE2d 511) (1983) (“[I]t is an essential
element of the crime of murder to show that a death occurred. . . .”).
“The totality of these various items — conduct, mental fault, plus
attendant circumstances and specified result when required by the
definition of a crime — may be said to constitute the ‘elements’ of
the crime.” 1 LaFave § 1.2 (c).
OCGA § 16-6-4 defines the elements of both child molestation
and aggravated child molestation. OCGA § 16-6-4 (a) (1) says in
relevant part: “A person commits the offense of child molestation
when such person . . . [d]oes any immoral or indecent act to or in the
presence of or with any child under the age of 16 years with the
intent to arouse or satisfy the sexual desires of either the child or
15 the person . . . .” And OCGA § 16-6-4 (c) says: “A person commits the
offense of aggravated child molestation when such person commits
an offense of child molestation which act physically injures the child
or involves an act of sodomy.”
Thus, for both crimes, OCGA § 16-6-4 (a) (1) identifies the actus
reus as “any immoral or indecent act” and the mens rea as a specific
“intent to arouse or satisfy the sexual desires of either the child or
the person.” See Hill v. Williams, 296 Ga. 753, 757 n.4 (770 SE2d
800) (2015) (discussing actus reus and mens rea elements of child
molestation and aggravated child molestation); McCord v. State, 248
Ga. 765, 766 (285 SE2d 724) (1982) (same for child molestation).
OCGA § 16-6-4 (a) (1) also specifies the presence of two attendant
circumstances as required elements of both child molestation and
aggravated child molestation: that the immoral or indecent act be
done “to or in the presence of or with any child,” and that the child
be “under the age of 16 years.” See Hill, 296 Ga. at 757 (describing
these attendant circumstances as “essential elements” of both
16 crimes). Appellant does not dispute that his having sexual
intercourse with his daughter amounts to child molestation.
Child molestation does not require as an element that any
particular result flow from the immoral or indecent act. Aggravated
child molestation, by contrast, requires as an additional element
that the immoral or indecent act produce a particular result. See
OCGA § 16-6-4 (c). Specifically, the act of molestation must
“physically injure[ ] the child.” Id. See also Hill, 296 Ga. at 757 n.4
(noting this element of aggravated child molestation). In other
words, an act of child molestation becomes aggravated child
molestation when it “physically injures the child.” OCGA § 16-6-4
(c).5
Appellant argues here, as he did in the trial court, that as a
matter of statutory interpretation, the physical injury element of
aggravated child molestation cannot be established through proof
5 It is possible to commit aggravated child molestation without physically
injuring a child, but only if the molestation “involves an act of sodomy.” OCGA § 16-6-4 (c). See OCGA § 16-6-2 (a) (1) (defining sodomy as performance of or submission to oral sex or anal sex). The indictment did not allege that Appellant’s molestation of S. D. involved an act of sodomy. 17 regarding childbirth. But by its terms, OCGA § 16-6-4 (c) requires
only an act of child molestation that “physically injures” the child;
the statute does not specify all the possible mechanisms of injury.
And the phrase “physically injures” is synonymous with the phrase
“causes physical injury.” See Hall v. Wheeling, 282 Ga. 86, 86 (646
SE2d 236) (2007) (equating phrase “physically injures” in
aggravated child molestation statute with phrase “causing physical
injury”). See also, e.g., Holloway v. State, 278 Ga. App. 709, 714 (629
SE2d 447) (2006) (same). Thus, the only question presented here is
whether the State offered evidence at trial that Appellant’s act of
sexual intercourse with his 14-year-old daughter caused her to
endure circumstances of childbirth so painful and traumatic to her
body that a jury could conclude that she was physically injured. To
answer that question, we look to the evidence the State offered to
show that S. D. suffered pain and physical trauma, and we ask
whether Appellant’s criminal conduct caused it.
The commission of a crime requires the joint operation of the
actus reus and the mens rea, see OCGA § 16-2-1 (a), as well as the
18 concurrence of any attendant circumstances that are defined as
elements of the crime. See 1 LaFave § 6.3 (b). But the same is not
true for elements that require a particular result. Where a crime is
defined in terms of the outcome, there can be “a time lag between
the conduct and the result.” Id. The connection that criminal law
requires between the conduct and the result is proximate cause.
Georgia is a proximate cause state. When another meaning is not indicated by specific definition or context, the term “cause” is customarily interpreted in almost all legal contexts to mean “proximate cause” – “[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.”
State v. Jackson, 287 Ga. 646, 648 (697 SE2d 757) (2010) (citation
omitted). See also 1 LaFave § 1.2 (b) (describing as one of the “basic
premises which underlie the whole of the Anglo-American
substantive criminal law” the proposition that “as to those crimes
which require not only some forbidden conduct but also some
particular result of that conduct, the conduct must be the ‘legal
cause’ (often called ‘proximate cause’) of the result”). Thus, it is not
19 necessary for a criminal statute to set out every possible way in
which the prohibited conduct can cause the specified result.
Here, the indictment charged Appellant with aggravated child
molestation by alleging that he had sexual intercourse with his
underage daughter, which resulted in physical injury to his
daughter related to the delivery of her child. The evidence the State
offered at trial was sufficient to support a finding beyond a
reasonable doubt of the physical injury element of the charge.
Specifically, the State presented evidence that Appellant’s act of
sexual intercourse with his 14-year-old daughter proximately
caused her physical injury by showing that S. D. suffered severe
tearing of her vaginal area and life-threatening blood loss during
childbirth, that S. D. required so many stitches afterward that it
looked like “plastic surgery,” and that S. D. suffered a great deal of
pain not only during the delivery itself, but for the next six weeks,
for which she was given prescription pain medication. See Dixon v.
State, 278 Ga. 4, 8 (596 SE2d 147) (2004) (explaining that under
OCGA § 16-6-4 (c), evidence of pain is sufficient to support a jury
20 finding that an act of child molestation physically injured the
victim); Massey v. State, 346 Ga. App. 233, 235 (816 SE2d 100)
(2018) (holding same).
Appellant’s act of unprotected sexual intercourse with his 14-
year-old daughter S. D., “in a natural and continuous sequence,
unbroken by any efficient intervening cause, produce[d] injury” to S.
D. in the form of a childbirth with severe tearing and potentially life-
threatening blood loss, as well as pain during the delivery and for
the next six weeks that was serious enough to warrant treatment
with prescription pain medication, none of which would have
occurred but for Appellant’s immoral and indecent act of
molestation. Jackson, 287 Ga. at 646 (citation and punctuation
omitted). Accordingly, Appellant’s claim that his conviction and
sentence for aggravated child molestation are invalid as a matter of
statutory interpretation fails. See id. at 654 (“Proximate causation
imposes liability for the reasonably foreseeable results of criminal
21 (or, in the civil context, tortious) conduct if there is no sufficient,
independent, and unforeseen intervening cause.”).6
(b) Appellant also claims that his conviction for aggravated
child molestation violates due process, because OCGA § 16-6-4 (c) is
unconstitutionally vague regarding whether an act of child
molestation that causes a child under the age of 16 to endure
childbirth can “physically injure[ ]” her. We disagree.
The constitutional guarantee of due process prohibits the
government from “taking away someone’s life, liberty, or property
under a criminal law so vague that it fails to give ordinary people
fair notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement.” Johnson v. United States, 578 U. S.
6 As noted at the outset, we do not hold that evidence of childbirth or a
pregnancy alone is always sufficient to support a jury finding that an act of child molestation proximately caused physical injury to the child as required to sustain a conviction for aggravated child molestation. Cf. Kendrick v. State, 331 Ga. App. 682, 684-685 (769 SE2d 621) (2015) (arguably suggesting that evidence of full-term pregnancy is always sufficient, standing alone, to prove physical injury element of aggravated child molestation); id. at 685-686 (Dillard, J., concurring fully and specially) (stating view that “the physical changes and conditions experienced by a [young] woman as a result of a pregnancy caused by child molestation constitute a ‘physical injury’ within the meaning of OCGA § 16-6-4 (c),” and claiming that this view is “the majority’s conclusion” as well). 22 ___, ___ (135 SCt 2551, 192 LE2d 569) (2015). See also United States
v. Davis, 588 U. S. ___, ___ (139 SCt 2319, 204 LE2d 757) (2019)
(“Vague laws contravene the first essential of due process of law that
statutes must give people of common intelligence fair notice of what
the law demands of them.” (citation and punctuation omitted)).
However, “[i]t is well established that vagueness challenges to
statutes which do not involve First Amendment freedoms must be
examined in the light of the facts of the case at hand.” United States
v. Mazurie, 419 U. S. 544, 550 (95 SCt 710, 42 LE2d 706) (1975). See
also Maynard v. Cartwright, 486 U. S. 356, 361 (108 SCt 1853, 100
LE2d 372) (1988) (“Vagueness challenges to statutes not
threatening First Amendment interests are examined in light of the
facts of the case at hand; the statute is judged on an as-applied
basis.”).
As explained above, it is a basic premise of American criminal
law that when a criminal statute defines a particular result as an
element of a crime, the connection required between the prohibited
conduct and the specified result is proximate cause. Thus, the
23 statute need not set out every step in the chain of causation between
the conduct and the result.7 Moreover, a person of common
intelligence would understand that an act of child molestation that
results in the pregnancy of a 14-year-old girl could, at the least,
cause her to sustain physical injury in the event of a painful and
traumatic childbirth such as the one discussed above in Division 2
(a), as contemplated by the physical injury requirement of the
aggravated child molestation statute. Accordingly, Appellant’s claim
that his aggravated child molestation conviction violates due process
7 A statute could of course set out required causal steps and define them
as elements of the crime. But even the statutes from other states and one territory that Appellant points to do not require pregnancy as an element of an aggravated sex crime. Instead, those out-of-state statutes merely say that pregnancy, along with other specified outcomes, can support a conviction for an elevated version of the underlying crime or crimes. See, e.g., N.M. Stat. Ann. §§ 30-9-10 (D) (defining “personal injury” to mean “bodily injury to a lesser degree than great bodily harm” that “includes, but is not limited to, disfigurement, mental anguish, chronic or recurrent pain, pregnancy or disease or injury to a sexual or reproductive organ”), 30-9-13 (B) (2) (b) (defining “[c]riminal sexual contact of a minor in the second degree” to mean among other things “all criminal sexual contact of the unclothed intimate parts of a minor perpetrated . . . on a child thirteen to eighteen years of age when . . . the perpetrator uses force or coercion that results in personal injury to the child”); West’s Wis. Stat. Ann. § 940.225 (1) (a) (defining nonconsensual sexual contact or intercourse as first degree sexual assault when it “causes pregnancy or great bodily harm”). 24 because OCGA § 16-6-4 (c) is void for vagueness as applied to him
also fails.
3. Finally, Appellant claims that he is entitled to a new trial
because the trial court erred in admitting incriminating statements
that he made to the CASA volunteer who spoke with him while he
was in jail and represented by counsel in his criminal case.
Appellant complains that the CASA volunteer did not advise him of
his Miranda rights before asking him questions, so his answers were
inadmissible at trial. But as the trial court found, the CASA
volunteer was not a government employee, and she did not go to the
jail to question Appellant at the behest of any law enforcement
officer. Thus, the CASA volunteer was not required to advise
Appellant of his Miranda rights. See Miranda, 384 U. S. at 444 (“By
custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.”).
See also 2 Wayne R. LaFave et al., Criminal Procedure § 6.10 (c) (4th
ed. Nov. 2018 update) (“[T]he courts have generally held that
25 government agents not primarily charged with enforcement of the
criminal law are under no obligation to comply with Miranda. Thus,
at least where the official has not been given police powers, Miranda
has been held inapplicable to questioning by school officials, welfare
investigators, medical personnel, judges, prison counselors, and
parole or probation officers.” (footnotes omitted)). The trial court
therefore did not err in admitting Appellant’s incriminating
statements to the CASA volunteer. See Williams v. State, 302 Ga.
474, 484 (807 SE2d 350) (2017) (“Miranda does not govern
questioning by private citizens who are not acting at the behest of
law enforcement.”). Accordingly, Appellant is not entitled to a new
trial on this basis.
Judgment affirmed. All the Justices concur, except Blackwell
and Warren, JJ., who concur specially.
26 BLACKWELL, Justice, concurring specially.
The Court today concludes that evidence of injury in connection
with childbirth is sufficient to prove that a victim sustained a
physical injury for purposes of OCGA § 16-6-4 (c), and because that
conclusion reflects a fair understanding of the statute that the
General Assembly has enacted, I concur in the judgment.8 I write
separately, however, to note a troubling consequence of our decision,
one that the General Assembly likely never intended.
To the extent that any injury sustained in childbirth is a
physical injury under the statute, anyone who causes a child under
the age of consent to become pregnant and experience childbirth will
be exposed to prosecution for aggravated child molestation, a crime
that is among the most serious felonies and is punishable by
8 The majority opinion focuses on the severity of the injuries that the
victim in this case sustained, but no one should think that our holding can be limited to especially severe injuries. After all, OCGA § 16-6-4 (c) speaks in terms of an act that “physically injures” a child, not an act that “severely physically injures” a child. And injury and pain are quite common in childbirth. Consequently, I understand the Court to effectively hold today that any childbirth involving injury of any sort and pain to any extent — a childbirth that is hardly uncommon — is a proper aggravating circumstance for the purposes of OCGA § 16-6-4 (c). 27 imprisonment for no less than 25 years and up to life. See OCGA §
16-6-4 (d) (1). No one will lose much sleep over the prospect that
someone like the appellant in this case — a sexually predatory
father who repeatedly had sexual intercourse with his teenaged
daughter — might spend the rest of his natural life in prison. But
understanding the statute as we do today, a 16-year-old high school
sophomore who has intercourse — without any force or other
coercion — with his 15-year-old girlfriend and causes her to become
pregnant and experience childbirth also would face the prospect of
imprisonment for life.
With recent revisions of the statutes concerning sex crimes
against children, the General Assembly has acknowledged that
felony sentences are too harsh in many cases involving sexual
activity between a willing teenager under the age of consent and
another teenager. See, e.g., OCGA §§ 16-6-3 (c) (“If the victim is at
least 14 but less than 16 years of age and the person convicted of
statutory rape is 18 years of age or younger and is no more than four
years older than the victim, such person shall be guilty of a
28 misdemeanor.”); 16-6-4 (b) (2) (“If the victim is at least 14 but less
than 16 years of age and the person convicted of child molestation is
18 years of age or younger and is no more than four years older than
the victim, such person shall be guilty of a misdemeanor . . . .”); 16-
6-4 (d) (2) (“A person convicted of the offense of aggravated child
molestation when . . . [t]he victim is at least 13 but less than 16 years
of age; [t]he person convicted . . . is 18 years of age or younger and
is no more than four years older than the victim; and [t]he basis of
the charge of aggravated child molestation involves an act of sodomy
shall be guilty of a misdemeanor . . . .”). But the General Assembly
has made no provision for more lenient treatment of teenagers in
cases of aggravated child molestation predicated on physical injury.9
Consequently, aggravated child molestation predicated on physical
injury — which, this Court now has held, may be proved by evidence
of an injury sustained in childbirth — is punishable only by
9 Perhaps that is because the General Assembly never actually contemplated that “injuries” that are not inherently a result of an act of violence — exceedingly minor injuries, for instance, or injuries (minor or not) incurred in connection with childbirth — would be held to satisfy the physical injury requirement of OCGA § 16-6-4 (c). 29 “imprisonment for life or by a split sentence that is a term of
imprisonment for not less than 25 years and not exceeding life
imprisonment, followed by probation for life.” OCGA § 16-6-4 (d) (1).
Whether a teenager in a particular case actually would face
such a harsh sentence depends in significant part, of course, on the
discretion of the district attorney. In cases involving, for instance, a
16-year-old boy, a 15-year-old girl, sexual intercourse without force
or coercion, and a resulting pregnancy and childbirth, I expect that
most district attorneys would exercise their discretion to decline
prosecution altogether or to pursue lesser charges than aggravated
child molestation predicated on physical injury. But there is little
reason for us to have confidence that every such case will come out
that way.10 See Humphrey v. Wilson, 282 Ga. 520 (652 SE2d 501)
10 One does not have to doubt that most prosecuting attorneys exercise
the powers of their offices in good faith to lack this confidence. A prosecuting attorney could misperceive, for instance, that an act of intercourse between two teenagers was forced or otherwise coerced, and as a result of that misperception, the prosecutor might charge a teenager with not only aggravated child molestation based on a childbirth that resulted from the intercourse, but also forcible rape. If a jury subsequently determined after hearing all the evidence that the intercourse was not, in fact, forced or coerced, the jury would be directed to acquit the teenager of the forcible rape. But an
30 (2007). If that is a concern for the General Assembly, perhaps it will
consider a further revision of OCGA § 16-6-4.
absence of force and coercion is no legal ground for an acquittal on a charge of aggravated child molestation, and it can be hard to undo a legal verdict after it has been returned. Prosecuting attorneys sometimes make mistakes, and even the most well-intentioned prosecutors may overcharge defendants from time to time. 31 WARREN, Justice, concurring specially.
Because I agree with the majority’s conclusion, I concur in the
judgment. Like Justice Blackwell, however, I write to highlight an
issue related to OCGA § 16-6-4 (c), the aggravated child molestation
statute.
The text of OCGA § 16-6-4 (c) does not expressly include or
exclude pregnancy in the definition of an “act [that] physically
injures.” Nor does it delineate pregnancy as a separate predicate for
aggravated child molestation, as it does for “an act of sodomy.” Id.
Today, the majority holds that evidence of child molestation that
proximately causes “a very painful and physically traumatic
childbirth nine months later . . . is legally sufficient to support a jury
finding of the physical injury element of aggravated child
molestation.” Maj. op. at ___. But the majority does not answer —
because it need not answer in this particular case — whether
evidence of pregnancy alone can constitute “physical[ ] injur[y],” and
can thus serve as a predicate for aggravated child molestation under
OCGA § 16-6-4 (c).
32 Some state legislatures have definitively answered that
question by making the policy judgment to enact statutes that
specifically include “pregnancy” in a definition of “injury” or “bodily
harm.” See, e.g., N.M. Stat. Ann. § 30-9-10 (D) (“‘[P]ersonal injury’
means bodily injury to a lesser degree than great bodily harm and
includes, but is not limited to, disfigurement, mental anguish,
chronic or recurrent pain, pregnancy or disease or injury to a sexual
or reproductive organ”); see also Del. Code Ann. tit. 11, § 9002 (10)
(“‘Personal injury’ shall mean bodily harm; or mental, emotional or
psychological harm, or shall include pregnancy resulting from the
crime.”); Minn. Stat. § 611A.52 (Subd. 9) (“‘Injury’ means actual
bodily harm including pregnancy and emotional trauma.”); Vt. Stat.
Ann. tit. 13, § 5351 (4) (“As used in this chapter: ‘Injury’ means
actual bodily harm or pregnancy, or emotional harm resulting from
the crime.”) (all emphasis supplied).
Other states expressly delineate pregnancy as a statutory
aggravator for a crime—not because pregnancy is deemed an
“injury,” but because it serves as a separate and independent basis
33 for elevated punishment, just as physical injury and sodomy
constitute separate and independent bases for elevated
punishments under Georgia’s aggravated child molestation statute.
Compare, e.g., OCGA § 16-6-4 (c) (“A person commits the offense of
aggravated child molestation when such person commits an offense
of child molestation which act physically injures the child or involves
an act of sodomy.”) with Wis. Stat. § 940.225 (1) (a) (first-degree
sexual assault committed when a person “[h]as sexual contact or
sexual intercourse with another person without consent of that
person and causes pregnancy or great bodily harm to that person”)
(emphasis supplied). Cf. Wash. Rev. Code § 9.94A.535 (3) (i)
(allowing for enhanced sentence if “[t]he offense resulted in the
pregnancy of a child victim of rape”) (emphasis supplied).
If Georgia’s General Assembly would like to clarify definitively
whether pregnancy is a predicate for aggravated child molestation
—because it is (or is not) delineated as a separate statutory
aggravator, because it is included in (or excluded from) “physical[ ]
injur[y]” under OCGA § 16-6-4 (c), or because of some other type of
34 legislative revision best imagined by the legislative branch — then
it should lift that determination out of the hands of prosecutors,
juries, and judges and act as policymaker to amend the statute.
Absent further guidance from the General Assembly, however,
Georgia courts may be faced with a more complicated line-drawing
exercise than this Court has had to engage in today.
35 DECIDED OCTOBER 31, 2019. OCGA § 16-6-4 (c); constitutional question. Hall Superior Court. Before Judge Fuller. Matthew G. Leipold, Brett M. Willis, H. Bradford Morris, Jr., for appellant. Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.