Dixon v. State

596 S.E.2d 147, 278 Ga. 4, 2004 Fulton County D. Rep. 1888, 2004 Ga. LEXIS 343

• Court: Supreme Court of Georgia
• Decided: May 3, 2004
• Docket: S04A0072
• Status: Published

Opinions

FLETCHER, Chief Justice.

A Floyd County jury convicted Marcus Dwayne Dixon of misdemeanor statutory rape and aggravated child molestation, but acquitted him of rape, false imprisonment, aggravated assault, and sexual battery.¹ Dixon appeals only his conviction for aggravated child molestation. Because we find that the General Assembly intended to punish Dixon’s conduct as misdemeanor statutory rape rather than child molestation, we reverse Dixon’s conviction for aggravated child molestation.

The State alleged that on February 10, 2003, Dixon forcibly raped the victim after school in a trailer on the campus of Pepperell High School. At the time, the victim was 15 years old, in 10th grade, and less than three years younger than Dixon, who was 18 years old and in 12th grade. The defense claimed that the sexual intercourse was consensual and that the victim fabricated the rape story to avoid trouble with her father. The victim sustained slight vaginal injuries, and there was also evidence of bruising on the victim’s arms.

Although the jury acquitted Dixon of rape, this means only that the State failed to prove the element of force beyond a reasonable doubt, and not that the activity was wholly consensual.

1. The statutory rape and child molestation statutes are part of a legislative framework aimed at protecting children from sexual exploitation and abuse. As part of a coordinated scheme, relating to the same subject matter, these statutes must be construed together to determine how the legislature intended to treat the conduct that occurred in this case.²

Under OCGA § 16-6-3 (a), a person commits the offense of felony statutory rape “when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse.” The offense is classified as a misdemeanor, however, if “the victim is 14 or 15 years of age and the person so convicted is no more than three years older than the victim.”³ Felony child molestation, under OCGA § 16-6-4 (a), is committed when a person “does 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 the person.” A person is guilty of aggravated child molestation, under OCGA § 16-6-4 (c), if that person “commits an offense of child molestation which act physically injures the child or involves the act of sodomy.”

Reading these statutes together shows a clear legislative intent to prosecute the conduct that the jury determined to have occurred in this case as misdemeanor statutory rape. A number of sound legal arguments support this position. First, in 1996 the legislature amended OCGA § 16-6-3 specifically to eliminate any discretion over whether to punish conduct meeting the misdemeanor statutory rape criteria as either felony or misdemeanor statutory rape. It would defeat the legislature’s intent in doing so if the State retained the discretion to prosecute the same conduct as either misdemeanor statutory rape or felony child molestation. Second, where two statutes overlap, the statute addressing the narrower range of conduct will usually trump the more general statute, and the misdemeanor statutory rape provision is far more specific than the child molestation statute. Third, the misdemeanor statutory rape statute reflects the most recent legislative judgment regarding the appropriate punishment for Dixon’s conduct. Finally, given the conflict between the two statutes, Dixon is entitled to receive only the lesser of the two possible punishments.

(a) The legislature amended the statutory rape laws in 1995, and again in 1996, in order to “provide for different penalties depending on the age of the perpetrator.”⁴ In 1995, the legislature added the misdemeanor statutory rape provision, OCGA§ 16-6-3 (b), authorizing the trial court, in its discretion, to punish conduct that would otherwise qualify as felony statutory rape as a misdemeanor if the victim was 14 or 15 years of age and the perpetrator was no more than three years older than the victim.⁵ In 1996, however, the legislature removed the discretionary nature of the misdemeanor statutory rape provision, so that conduct meeting the criteria of the misdemeanor statute could only be punished as a misdemeanor.⁶

It would be entirely incongruous with the intent of the legislature, when it eliminated the discretionary aspect of the statute and mandated that conduct meeting the misdemeanor statutory rape criteria be punished only as a misdemeanor, if the State retained the discretion to prosecute the exact same conduct as either misdemeanor statutory rape or felony child molestation. Instead, when the legislature removed the discretionary aspect of the misdemeanor statutory rape provision, it intended the misdemeanor provision to have exclusive application to conduct falling within its parameters.⁷ If the conduct at issue in this case also qualifies as child molestation, then the misdemeanor statutory rape provision would have no exclusive application, because any instance of sex between teenagers would also constitute child molestation.⁸ That result would completely undermine the legislature’s intent to remove any discretion over whether to punish sexual intercourse between teenagers, other than forcible rape, as a misdemeanor or a felony.

(b) In addition, by enacting the non-discretionary misdemeanor statutory rape provision, the legislature spoke very directly towards specific conduct involving actors within a very narrow age range. As this Court stated in Vines v. State, “[f]or purposes of statutory interpretation, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.”⁹ This is a well-regarded principle of statutory construction in Georgia.¹⁰ The misdemeanor statutory rape provision, with its three-year age range, is far more specific and narrow than either the felony statutory rape statute or the felony child molestation statute, and evidences a clear intent by the legislature to treat that very narrow conduct as a misdemeanor. The legislature enacted a very specific statute and deemed conduct falling within that statute to constitute a misdemeanor, and it would undermine the intent of that statute if the exact same conduct could also be punished as felony child molestation.

(c) Further, the misdemeanor statutory rape provision, adopted in 1996, is the most recent legislative judgment regarding the appropriate punishment for Dixon’s conduct. This Court has held that “[t]he rule for construing statutes which may be in conflict is that the most recent legislative expression prevails.”¹¹ Since the legislature most recently declared that sex between teenagers less than three years apart should be punished as misdemeanor statutory rape, and not felony child molestation, that judgment must prevail.

(d) Finally, due to the conflicting nature of the two statutes with respect to their prescribed punishments, the rule of lenity requires that Dixon only be sentenced for the misdemeanor. As this Court has explained, “ ‘[w]here any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered.’ ”¹² The rule derives from the “instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.”¹³ Here, the same conduct would result in the imposition of dramatically different penalties under the two statutes. The rule of lenity is particularly applicable where the two crimes at issue involve different grades of punishment, i.e., a misdemeanor and a felony.¹⁴

2. The State argues that the “aggravated” nature of this act renders it a different crime altogether from child molestation, so that the statutory construction arguments have no merit.¹⁵ The State ignores, however, that simple child molestation is a necessary element of aggravated child molestation, so that the State cannot reach aggravated child molestation without first proving that Dixon is guilty of simple child molestation.¹⁶ As discussed above, however, elementary rules of statutory construction show that the legislature intended for Dixon’s conduct to be prosecuted as misdemeanor statutory rape rather than felony child molestation, whether simple or aggravated.

3. We encourage the legislature to examine this case and make a more recognizable distinction between statutory rape, child molestation, and the other sexual crimes, and to clarify the sort of conduct that will qualify for the ten-year minimum sentence accompanying a conviction for aggravated child molestation. The conflicting nature of the statutory scheme relating to sexual conduct, especially with respect to teenagers, may lead to inconsistent results. Under the statutes as they are now written, it is entirely possible that teenagers could be convicted of aggravated child molestation, and receive the concomitant ten-year minimum sentence, if they willingly engage in sexual activity, but stop short of the actual act of sexual intercourse, so long as one experienced slight pain or received even minor injuries incidental to the act.

4. In light of the determination that the legislature intended conduct qualifying as misdemeanor statutory rape not to be charged as felony child molestation, we need not address Dixon’s contention that his sentence is unconstitutionally cruel and unusual,¹⁷ nor any other remaining arguments.

Dixon’s conviction for aggravated child molestation is hereby reversed.

Judgment reversed.

All the Justices concur, except Carley, Thompson and Hines, JJ., who dissent.

1 The crimes were committed on February 10, 2003. On March 14, 2003, a grand jury indicted Dixon for rape, statutory rape, aggravated assault, false imprisonment, sexual battery, and aggravated child molestation. On May 15,2003, the jury convicted Dixon of statutory rape and aggravated child molestation, but acquitted him of all remaining charges. On May 23,2003, Dixon received the mandatory minimum sentence for aggravated child molestation of fifteen years, serve ten. Dixon appeals, invoking the jurisdiction of this Court by challenging the constitutionality of the aggravated child molestation statute, OCGA § 16-6-4. The case was docketed in this Court on September 16, 2003, and oral argument was heard on January 24, 2004.

2 See, e.g., Lucas v. Smith, 201 Ga. 834, 837 (41 SE2d 527) (1947) (“our system of law is not to be construed by single Code sections or single provisions of the law; the entire system must be construed as a whole to determine the intent and purpose of the laws as applied to each particular case or state of facts.”); Mathis v. Cannon, 276 Ga. 16, 26 (573 SE2d 376) (2002) (“It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject matter, briefly called statutes in pari materia, are construed together”), quoting Butterworth v. Butterworth, 227 Ga. 301, 303-304 (180 SE2d 549) (1971) (punctuation omitted).

3 OCGA§ 16-6-3 (b).

4 1996 Ga. Laws 871.

5 1995 Ga. Laws 957, 958, § 3.

6 1996 Ga. Laws 1115, 1117, § 3.

7 See, e.g., State v. Collins, 270 Ga. 42, 46 (508 SE2d 390) (1998) (Hines, J., concurring) (“It would be anomalous and a circumvention of express legislative intent to allow the State to obtain conviction and the consequent ten-year punishment for forcible rape [or aggravated child molestation] for the conduct of sexual intercourse between teenagers when the legislature has determined that conduct to be misdemeanor in nature.”).

8 State v. English, 276 Ga. 343, 348 (578 SE2d 413) (2003) (courts must “construe the statute to give sensible and intelligent effect to all of its provisions and to refrain from any interpretation which renders any part of the statute meaningless.”).

9 269 Ga. 438, 440 (499 SE2d 630) (1998).

10 See, e.g., Gee v. State, 225 Ga. 669, 676 (171 SE2d 291) (1969) (“ ‘[w]here a crime is penalized by a special law, the general provisions of the penal code are not applicable’ ”); Mann v. State, 273 Ga. 366, 368 (541 SE2d 645) (2001) (same).

11 Jenkins v. State, 265 Ga. 539, 540 (458 SE2d 477) (1995).

12 Brown v. State, 276 Ga. 606, 608-609 (581 SE2d 35) (2003); see also Chandler v. State, 257 Ga. 775, 776 (364 SE2d 273) (1988).

13 United States v. R. L. C., 503 U. S. 291, 305 (112 SC 1329, 117 LE2d 559) (1992).

14 See McClellan v. State, 274 Ga. 819 (561 SE2d 82) (2002) (“a penal statute providing two possible grades of punishment... for the same offense ... is uncertain and the defendant is entitled to the lesser of the two penalties...”); Brown, 276 Ga. at 609 (where “the same conduct constitute [s] hoth a felony and a misdemeanor, the rule of lenity requires that [the defendant] be subjected to the penalt[y] for the misdemeanor, rather than the felony’).

15 According to existing case law, all that is required to meet the “injury’ requirement is that the victim experienced pain during the crime. See Baker v. State, 228 Ga. App. 32, 33 (491 SE2d 78) (1997) (“evidence that the molestation ‘hurt’ was sufficient to prove physical injury,” even without corroborating medical evidence). The State in this case introduced evidence that the victim did experience pain during the sexual intercourse, and that she suffered certain other minor injuries incidental to the sexual act.

16 See OCGA § 16-6-4 (c) (aggravated child molestation occurs “when [a] person commits the offense of child molestation which act physically injures the child...”); Foster v. State, 254 Ga. App. 255 (562 SE2d 191) (2002) (“[c]hild molestation is necessarily a lesser included offense of aggravated child molestation.”).

17 Cross v. State, 225 Ga. 760, 763 (171 SE2d 507) (1969) (“ ‘It has long heen the rule that courts will abstain from ruling upon the constitutionality of an act of the General Assembly where there is any other basis upon which to render a valid judgment.’ ”).