Sears v. State

356 S.E.2d 72, 182 Ga. App. 480, 1987 Ga. App. LEXIS 2628
CourtCourt of Appeals of Georgia
DecidedMarch 17, 1987
Docket73349
StatusPublished
Cited by31 cases

This text of 356 S.E.2d 72 (Sears 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
Sears v. State, 356 S.E.2d 72, 182 Ga. App. 480, 1987 Ga. App. LEXIS 2628 (Ga. Ct. App. 1987).

Opinions

Pope, Judge.

Dave William Sears brings this appeal from his convictions of incest, enticing a child for indecent purposes, child molestation (two counts), and rape. Held:

1. Appellant’s first enumeration of error challenges his convictions of Count 1 (incest), Count 2 (enticing a child for indecent purposes), and Count 3 (child molestation) on the ground that the statute of limitation had run prior to his indictment. Appellant was indicted on April 18, 1985. As to Counts 1, 2 and 3 the indictment alleged that these criminal acts occurred “in the year 1980” but were unknown to the prosecutor and authorities of the State prior to March 1985.

The prosecution for felonies such as those in Counts 1, 2 and 3 must be commenced within four years after the commission of the crimes. OCGA § 17-3-1 (c); see Peavy v. State, 179 Ga. App. 397 (1) (346 SE2d 584) (1986). “The period within which a prosecution must be commenced under Code Section 17-3-1 . . . does not include any period in which: ... (2) The person committing the crime is unknown or the crime is unknown. . . .” OCGA § 17-3-2. Thus, “[t]he key to determining when the statute of limitation begins to run is to find when the offender or offense became known. [Cits.]” State v. Brannon, 154 Ga. App. 285, 286-87 (267 SE2d 888) (1980). The State bears the burden of proof in this regard. See State v. Lester, 170 Ga. [481]*481App. 471 (317 SE2d 295) (1984); State v. Tuzman, 145 Ga. App. 481 (3) (243 SE2d 675) (1978).

The victim testified that at the time of the alleged criminal acts in 1980, she was eleven years old. She knew the alleged acts were wrong (“I have been raised and taught ... to believe that men shouldn’t... do things like that to little girls”), but she was not specifically aware that such conduct was criminal. She became aware of the criminality of the alleged conduct in the summer of 1984, approximately one year before trial, as the result of radio and television news broadcasts. She stated that she did not report appellant initially because she was ashamed. She also testified that she feared appellant because of a variety of threats he had made toward her if she were to report the alleged conduct. “[T]his court in Brown v. State, 6 Ga. App. 329 (2) (64 SE 1001) [(1909)], . . . held that ‘The statute of [limitation] does not begin to run in favor of the offender until his offense is known to the prosecutor, or to someone interested in the prosecution, or injured by the offense.’ The only possible construction of this decision is that when the offense is known to the person injured by the offense, the statute does begin to run. . . . This is as it should be, because the injured person has some motive for reporting the crime to the State. Another thing shown by the decision in the Brown case is that the prosecutor is not the only one whose knowledge would bind the State. It holds that the statute does not begin to run until the offense is known to the ‘prosecutor’ or to someone ‘injured by the offense’; which necessarily means that it does begin to run after it is known to the prosecutor or to the one ‘injured by the offense.’ It seems to be well settled that if a crime against the public involves also a wrong upon an individual, such as an assault or any other crime in which an individual, who is not a party to the crime suffers, the knowledge of the victim is the knowledge of the State, even though the victim does not represent the State in an official capacity.” Taylor v. State, 44 Ga. App. 64, 69-70 (160 SE 667) (1931); State v. Brannon, supra. Compare Kiles v. State, 48 Ga. App. 675 (2) (173 SE 174) (1934), wherein knowledge of the offense of fornication and adultery by the joint offender was not imputable to the State. Where, as here, the undisputed record evidence shows that the victim had knowledge of the offenses (if not their criminality) allegedly committed upon her by appellant “in the year 1980,” such knowledge is imputed to the State, and precludes the State from obtaining an indictment against appellant for those alleged crimes more than four years after both the offenses and the offender were known. See generally Holloman v. State, 133 Ga. App. 275 (211 SE2d 312) (1974).

We are compelled to reject the State’s various assertions that the statute of limitation was tolled because the crimes were unknown in this case due to the victim’s infancy, her lack of awareness of the [482]*482criminality of appellant’s alleged conduct, and/or her purported fear of appellant. “In deciding when the statute of [limitation] begins to run in a given case several considerations guide our decision. The purpose of a statute of [limitation] is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. . . .For these reasons and others, we [reiterate] ‘the principle that criminal limitations statutes are “to be liberally interpreted in favor of repose,” [cit.]’ [Cit.] . . . [Also,] ‘(s)tatutes of [limitation] normally begin to run when the crime is complete.’ [Cits.]” Toussie v. United States, 397 U. S. 112, 114-15 (90 SC 858, 25 LE2d 156) (1970). “As a general rule, exceptions will not be implied to statutes of [limitation] for criminal offenses, and ordinarily the running of such a statute is not interrupted unless it contains an exception or condition that will toll its operation.” 22 CJS 596, Criminal Law, § 228 (1). See also State v. Locke, 73 W.Va. 713, 716 (81 SE 401) (1914), holding that “where there is cause for a criminal prosecution, the statute begins to run unless prevented by some exception to the statute, and after it has commenced to run it cannot be interrupted by the happening of any subsequent event or disability, as death, coverture, infancy, etc.” “Any exception to the limitation period must be construed narrowly and in a light most favorable to the accused.” State v. Holmes, 181 Ind. App. 634, 637 (393 NE2d 242) (1979). “ ‘Every statute of [limitation], of course, may permit a rogue to escape,’ ” Toussie v. United States, supra at 123-24, but there being no statutory basis for the exceptions to the statute espoused here by the State, we must give effect to the clear expression of legislative will that felony prosecutions must be commenced within four years after the commission of the crimes and reverse appellant’s convictions of Counts 1, 2, and 3 of the indictment.

2. In light of our holding in Division 1, supra, appellant’s second and third enumerations of error are moot.

3. Reviewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found appellant guilty beyond a reasonable doubt of the remaining count of child molestation (see White v. State, 180 Ga. App. 185 (1) (348 SE2d 728) (1986); Childs v. State, 177 Ga. App. 257 (2) (339 SE2d 311) (1985)) and of rape (see J. B. v. State, 171 Ga. App.

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Bluebook (online)
356 S.E.2d 72, 182 Ga. App. 480, 1987 Ga. App. LEXIS 2628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sears-v-state-gactapp-1987.