D'AURIA v. State

Supreme Court of Georgia

D'AURIA v. State

512 S.E.2d 266, 270 Ga. 499, 99 Fulton County D. Rep. 565, 1999 Ga. LEXIS 103

CourtSupreme Court of Georgia

DecidedFebruary 8, 1999

DocketS98A2002

StatusPublished

Cited by19 cases

This text of 512 S.E.2d 266 (D'AURIA v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

D'AURIA v. State, 512 S.E.2d 266, 270 Ga. 499, 99 Fulton County D. Rep. 565, 1999 Ga. LEXIS 103 (Ga. 1999).

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Opinions

Hunstein, Justice.

Ralph D’Auria was charged with the offense of sexual battery under OCGA § 16-6-22.1 in an accusation filed by the State in February 1993. The accusation was amended in May 1993 to reflect the victim’s married name. In April 1995, D’Auria filed a plea in bar based on the statute of limitation, a plea in bar based on double jeopardy, and a demurrer based on the alleged unconstitutionality of OCGA § 16-6-22.1. After a complicated procedural history, D’Auria now appeals from the trial court’s denial of his statute of limitation and constitutional challenges.

OCGA § 16-6-22.1 (b) provides: “A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent [500]*500of that person.” “Intimate parts” are defined to include “the primary-genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.” Id. at (a). In its May 1993 accusation, the State charged D’Auria with the offense of sexual battery “by making contact with the intimate body parts of [the victim] in violation of OCGA § 16-6-22.1.”¹ D’Auria contends his prosecution is barred because the State failed to file a valid accusation within the applicable two-year statute of limitation. See OCGA §§ 17-3-1 (d); 16-6-22.1 (c). He argues, inter alia, that the May 1993 accusation is invalid because it failed to provide the specificity necessary to apprise him of what he is alleged to have done in violation of law. Based on the facts in this particular case, we agree.

1. An accusation will be held insufficient unless it contains the elements of the offense intended to be charged, sufficiently apprises the defendant of the crimes against which he must defend at trial, and is specific enough to protect the defendant against another prosecution for the same offense. McCrary v. State, 252 Ga. 521, 523 (314 SE2d 662) (1984); see State v. Eubanks, 239 Ga. 483, 486 (238 SE2d 38) (1977) (failure to charge necessary elements of crime voids the indictment). See generally OCGA § 17-7-71 (c) (accusation sufficient if it states offense in terms and language of law or so plainly that nature of offense charged may be easily understood by jury). In this case, D’Auria, a physician, was treating the victim for injuries she received in an automobile accident. At the time of the alleged crime, D’Auria was providing ongoing medical treatment to the victim who voluntarily submitted herself to at least minimal physical contact by her physician. However, the May 1993 accusation does not identify which body parts were allegedly touched without her consent or more specifically identify the manner in which the illegal touching allegedly occurred. The May 1993 accusation does nothing more than reference the statute alleged to have been violated and recite some, but not all, of the elements of the crime of sexual battery. Although recitation of the statute may, in certain cases, be a sufficient, though not desirable, method of apprising a defendant of the charges against him, see Broski v. State, 196 Ga. App. 116, 117 (1) (395 SE2d 317) (1990), recitation of portions of the statute is not sufficient if, reading the accusation together with the statute, a defendant is unable to determine which of his acts are alleged to be criminal in nature. See generally England v. State, 232 Ga. App. 842, 844 (2) (a) (502 SE2d 770) (1998) and State v. Black, 149 Ga. App. 389, 391 (4) (254 SE2d [501]*501506) (1979) (where crime may be committed in several ways, failure to charge manner in which crime was committed subjects accusation to special demurrer). Under the facts of this case, we find that mere recitation of portions of the statute was not sufficient to enable D’Auria to prepare for trial and respond to the charges against him. Accordingly, there being no valid accusation filed within two years from the time of the alleged crime, it was error for the trial court to deny D’Auria’s plea in bar based on the statute of limitation.

2. We need not address D’Auria’s constitutional challenge to OCGA § 16-6-22.1 based on our ruling in the first division.

Judgment reversed.

All the Justices concur, except Benham, C. J, Thompson and Hines, JJ, who dissent.

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Hunstein, Justice.

Ralph D’Auria was charged with the offense of sexual battery under OCGA § 16-6-22.1 in an accusation filed by the State in February 1993. The accusation was amended in May 1993 to reflect the victim’s married name. In April 1995, D’Auria filed a plea in bar based on the statute of limitation, a plea in bar based on double jeopardy, and a demurrer based on the alleged unconstitutionality of OCGA § 16-6-22.1. After a complicated procedural history, D’Auria now appeals from the trial court’s denial of his statute of limitation and constitutional challenges.

OCGA § 16-6-22.1 (b) provides: “A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent [500]*500of that person.” “Intimate parts” are defined to include “the primary-genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.” Id. at (a). In its May 1993 accusation, the State charged D’Auria with the offense of sexual battery “by making contact with the intimate body parts of [the victim] in violation of OCGA § 16-6-22.1.”¹ D’Auria contends his prosecution is barred because the State failed to file a valid accusation within the applicable two-year statute of limitation. See OCGA §§ 17-3-1 (d); 16-6-22.1 (c). He argues, inter alia, that the May 1993 accusation is invalid because it failed to provide the specificity necessary to apprise him of what he is alleged to have done in violation of law. Based on the facts in this particular case, we agree.

1. An accusation will be held insufficient unless it contains the elements of the offense intended to be charged, sufficiently apprises the defendant of the crimes against which he must defend at trial, and is specific enough to protect the defendant against another prosecution for the same offense. McCrary v. State, 252 Ga. 521, 523 (314 SE2d 662) (1984); see State v. Eubanks, 239 Ga. 483, 486 (238 SE2d 38) (1977) (failure to charge necessary elements of crime voids the indictment). See generally OCGA § 17-7-71 (c) (accusation sufficient if it states offense in terms and language of law or so plainly that nature of offense charged may be easily understood by jury). In this case, D’Auria, a physician, was treating the victim for injuries she received in an automobile accident. At the time of the alleged crime, D’Auria was providing ongoing medical treatment to the victim who voluntarily submitted herself to at least minimal physical contact by her physician. However, the May 1993 accusation does not identify which body parts were allegedly touched without her consent or more specifically identify the manner in which the illegal touching allegedly occurred. The May 1993 accusation does nothing more than reference the statute alleged to have been violated and recite some, but not all, of the elements of the crime of sexual battery. Although recitation of the statute may, in certain cases, be a sufficient, though not desirable, method of apprising a defendant of the charges against him, see Broski v. State, 196 Ga. App. 116, 117 (1) (395 SE2d 317) (1990), recitation of portions of the statute is not sufficient if, reading the accusation together with the statute, a defendant is unable to determine which of his acts are alleged to be criminal in nature. See generally England v. State, 232 Ga. App. 842, 844 (2) (a) (502 SE2d 770) (1998) and State v. Black, 149 Ga. App. 389, 391 (4) (254 SE2d [501]*501506) (1979) (where crime may be committed in several ways, failure to charge manner in which crime was committed subjects accusation to special demurrer). Under the facts of this case, we find that mere recitation of portions of the statute was not sufficient to enable D’Auria to prepare for trial and respond to the charges against him. Accordingly, there being no valid accusation filed within two years from the time of the alleged crime, it was error for the trial court to deny D’Auria’s plea in bar based on the statute of limitation.

2. We need not address D’Auria’s constitutional challenge to OCGA § 16-6-22.1 based on our ruling in the first division.

Judgment reversed.

All the Justices concur, except Benham, C. J, Thompson and Hines, JJ, who dissent.

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512 S.E.2d 266, 270 Ga. 499, 99 Fulton County D. Rep. 565, 1999 Ga. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dauria-v-state-ga-1999.

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