Loya v. State

740 S.E.2d 382, 321 Ga. App. 430, 2013 Fulton County D. Rep. 993, 2013 WL 1165378, 2013 Ga. App. LEXIS 261
CourtCourt of Appeals of Georgia
DecidedMarch 22, 2013
DocketA12A2194
StatusPublished
Cited by2 cases

This text of 740 S.E.2d 382 (Loya v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Loya v. State, 740 S.E.2d 382, 321 Ga. App. 430, 2013 Fulton County D. Rep. 993, 2013 WL 1165378, 2013 Ga. App. LEXIS 261 (Ga. Ct. App. 2013).

Opinion

Branch, Judge.

Lorenzo Alan Loya was tried by jury and found guilty of felony public indecency for urinating in public.1 On appeal, he contends the trial court erred by refusing to charge public drunkenness as a lesser included offense of public indecency. He also contends one aspect of his sentence is void.

On appeal, we view the evidence in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 [431]*431SC 2781, 61 LE2d 560) (1979). Moreover, the State does not take issue with Loya’s statement of facts. See Court of Appeals Rule 25 (b) (1) (“Except as controverted, appellant’s statement of facts may be accepted by this Court as true.”). The parties agree that Officer Whitfield saw Loya walk along a road and stop and urinate on a large boulder at the same time that a woman was driving in the opposite direction. Whitfield saw that the woman appeared to be shocked, and Whitfield testified that he could see Loya’s genitals when Loya was urinating. Loya was intoxicated at the time. The State also introduced two similar occurrences. In the first, Loya was arrested and, in August 2003, pled guilty to exposing himself in a courtroom to a female probation officer. In the second, Loya was convicted in November 2005 of exposing himself outside a public library.

1. Loya requested a charge on public drunkenness as a lesser included offense of public indecency. The trial court denied the request for the reason that “the defendant’s defense is that the public indecency did not occur.” On appeal, Loya contends that the trial court erred in refusing this charge because the jury could have concluded from the evidence that Loya was guilty of public drunkenness and that his public urination could have been considered an “indecent condition or act” under OCGA § 16-11-41.2

One offense is not included in another under OCGA § 16-1-6 (1)3 if each offense requires proof of a fact that the other does not. Drinkard v. Walker, 281 Ga. 211, 213 (636 SE2d 530) (2006); Stuart v. State, 318 Ga. App. 839, 841 (734 SE2d 814) (2012). Loya was charged with public indecency in that he “did perform a lewd exposure of the sexual organs in a public place____” See OCGA § 16-6-8 (a) (2).4 Public drunkenness requires proof of intoxication in a public place and proof that the drunkenness was made manifest in one of several ways, one of which is that the defendant exhibited an “indecent condition or act.” OCGA § 16-11-41 (a).

[432]*432The crime of public drunkenness requires proof that Loya was intoxicated, which the crime of public indecency does not. The crime of public drunkenness does not require a' lewd exposure of sexual organs, which is required by the crime of public indecency. And the crime of public indecency requires proof of exposure of sexual organs, which the crime of public drunkenness does not. Accordingly, as the crime of public drunkenness requires proof of facts that public indecency does not, the offense of public drunkenness is not included in the crime of public indecency pursuant to OCGA § 16-1-6 (1).

Loya also contends that OCGA § 16-1-6 (2) regarding lesser included offenses could apply. OCGA § 16-1-6 (2) provides that a crime is included in another if “[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” Loya argues that because public drunkenness may be shown by an “indecent condition or act,” that element of the crime only differs in degree from the element of public indecency that requires showing “lewd exposure of the sexual organs.” But Loya ignores the fact that public drunkenness also requires a showing of intoxication and therefore differs from public indecency in a way not covered by OCGA § 16-1-6 (2).

Accordingly, we find no error in the trial court’s refusal to charge the jury on public drunkenness as a lesser included offense of public indecency.

2. On January 13, 2010, the trial court sentenced Loya to five years confinement, with two years to serve and three years probation. In addition, as a special condition of probation, the court ordered Loya to register as a sex offender. Loya contends the trial court erred by requiring him to register because (1) public indecency is not a crime for which conviction requires registration as a sex offender under OCGA § 42-1-12 (e), and (2) requiring him to register constitutes an “indeterminate sentence” in that under the registration statute he must comply with the registration requirements for his entire life. OCGA § 42-1-12 (f) (6). We find no error.

(a) The State essentially concedes that Loya’s conviction does not fall within the type of conviction for which sex offender registration is required, and our review of OCGA § 42-1-12 confirms Loya’s position.5 It is well established, however, that a trial court has broad discretion to impose appropriate conditions of probation, and “the [433]*433appellate courts will approve any reasonable condition imposed for probation of sentence by the trial court in the absence of express authority to the contrary.” (Citation and punctuation omitted.) Hollie v. State, 287 Ga. 389, 390 (1) (696 SE2d 642) (2010). See also Ballenger v. State, 210 Ga. App. 627, 628 (1) (436 SE2d 793) (1993) (“The trial judge is expressly authorized by OCGA § 17-10-1 (a) to ‘suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper... .’ ”) (citation omitted). And the Supreme Court of Georgia has held that there is no authority prohibiting a trial court from ordering sex offender registration as special condition of probation for those who commit crimes that come within the registration statute. Hollie, supra at 390 (1). That court also held that the registration statute itself “contains no language expressly prohibiting a superior court from imposing sex offender registration as a probation condition.” Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Daniel Ray Metcalf v. State
Court of Appeals of Georgia, 2019
Smith v. the State
763 S.E.2d 269 (Court of Appeals of Georgia, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
740 S.E.2d 382, 321 Ga. App. 430, 2013 Fulton County D. Rep. 993, 2013 WL 1165378, 2013 Ga. App. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loya-v-state-gactapp-2013.