Georgia Code, Volume 14, 2012 Supplement

2012·5 MB·English

by  State of Georgia

OFFICIAL CODE OF GEORGIA
ANNOTATED
2012 Supplement
Including Acts ofthe 2012 Regular Session ofthe General Assembly
Prepared by
The Code Revision Commission
The Office ofLegislative Counsel
and
The Editorial Staff ofLexisNexis®
Published Under Authority ofthe State of Georgia
Volume
14
2011 Edition
—
Title 16. Crimes and Offenses (Chapters 1 6)
IncludingAnnotations to the Georgia Reports
and the GeorgiaAppeals Reports
Place in Pocket of Corresponding Volume of
Main Set
LexisNexis®
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Copyright © 2012
BY
The State of Georgia
All rights reserved.
ISBN 978-0-327-11074-3 (set)
ISBN 978-1-4224-9384-7
5013429
(Pub.41805)
THIS SUPPLEMENT CONTAINS
Statutes:
All laws specifically codified by the General Assembly ofthe State of
Georgia through the 2012 Regular Session ofthe General Assembly.
Annotations ofJudicial Decisions:
Case annotations reflecting decisions posted to LexisNexis® through
March 30, 2012. These annotations will appear in the following tradi-
tional reporter sources: Georgia Reports; Georgia Appeals Reports;
Southeastern Reporter; Supreme Court Reporter; Federal Reporter;
Federal Supplement; Federal Rules Decisions; Lawyers' Edition;
United States Reports; and Bankruptcy Reporter.
Annotations ofAttorney General Opinions:
Constructions ofthe Official Code ofGeorgiaAnnotated, prior Codes
ofGeorgia, Georgia Laws, the Constitution ofGeorgia, and the Consti-
tution of the United States by the Attorney General of the State of
Georgia posted to LexisNexis® through March 30, 2012.
OtherAnnotations:
References to:
Emory Bankruptcy Developments Journal.
Emory International Law Review.
Emory Law Journal.
Georgia Journal ofInternational and Comparative Law.
Georgia Law Review.
Georgia State University Law Review.
Mercer Law Review.
Georgia State Bar Journal.
Georgia Journal of Intellectual Property Law.
American Jurisprudence, Second Edition.
American Jurisprudence, Pleading and Practice.
American Jurisprudence, ProofofFacts.
American Jurisprudence, Trials.
Corpus Juris Secundum.
Uniform Laws Annotated.
American Law Reports, First through Sixth Series.
American Law Reports, Federal.
Tables:
In Volume 41, a Table Eleven-A comparing provisions of the 1976
Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table
Eleven-B comparing provisions ofthe 1983 Constitution of Georgia to
the 1976 Constitution of Georgia.
An updated version of Table Fifteen which reflects legislation
through the 2012 Regular Session ofthe General Assembly.
iii
Indices:
A cumulative replacement index to laws codified in the 2012 supple-
ment pamphlets and in the bound volumes ofthe Code.
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IV
TITLE 16
CRIMES AND OFFENSES
VOLUME
14
Chap.
1. General Provisions, 16-1-1 through 16-1-12.
5. Crimes Against the Person, 16-5-1 through 16-5-110.
VOLUME 14A
7. Damage to and Intrusion upon Property, 16-7-1 through
16-7-97.
8. Offenses Involving Theft, 16-8-1 through 16-8-106.
9. Forgery and Fraudulent Practices, 16-9-1 through 16-9-157.
10. Offenses Against Public Administration, 16-10-1 through
16-10-98.
11. Offenses Against Public Order and Safety, 16-11-1 through
16-11-203.
VOLUME
14B
12. Offenses Against Public Health and Morals, 16-12-1
through 16-12-176.
13. Controlled Substances, 16-13-1 through 16-13-114.
14. Racketeer Influenced and Corrupt Organizations, 16-14-1
through 16-14-15.
16. Forfeiture of Property Used in Burglary or Armed
Robbery, 16-16-1 through 16-16-2.
—
Law reviews. For note, "Seen But ibility ofRecanted Testimony," see 46 Ga.
Not Heard: An Argument for Granting L. Rev. 213 (2011).
Evidentiary Hearings to Weigh the Cred-
2012 Supp.
T.16, C.l CRIMES AND OFFENSES 16-1-6
CHAPTER
1
GENERAL PROVISIONS
Sec. pointed to represent state in
16-1-12. Restrictions on contingencyfee forfeiture action.
compensation of attorney ap-
16-1-3. Definitions.
JUDICIAL DECISIONS
Analysis
General Consideration
Public Place
Prosecution
General Consideration 518, 714 S.E.2d 98 (2011); Wells v. State,
— 313 Ga. App. 528, 722 S.E.2d 133 (2012).
Term "property." Taxpayers were
not entitled to a theft loss under 26 Public Place
U.S.C.S. § 165(e)withrespecttoadecline Jail is not a public place. — Defen-
invalueofpubliclytradedstock, asatheft
dant's conviction for affray in violation of
by taking did not occur under O.C.G.A. O.C.G.A. § 16-11-32 was reversed be-
§ 16-8-2 because a corporation did not cause the altercation occurred in the Hall
unlawfully take or appropriate any prop- County Jail, which was not a "public
erty from the taxpayer, and there was no place"as required for conviction pursuant
evidence ofany intention by the corpora- to O.C.G.A. §§ 16-1-3(15) and 16-6-8(d).
tion or its executives to deprive the tax- Singletaryv. State, 310 Ga.App. 570, 713
payer of the property at issue. Although S.E.2d 698 (2011).
corporate stock, which was in the taxpay-
Prosecution
er's control after he exercised his stock
options, subsequently declined in value, Indictment charging involuntary
there was no evidence that the corporate manslau—ghter by simple battery suf-
executives had any specific intent with ficient. Indictmentchargingthedefen-
regard to the taxpayer to take or appro- dant with involuntary manslaughter by
priate his stock by devaluation or by any the commission of the unlawful act of
othermeans; rather, the goal ofthe corpo- simple battery in violation of O.C.G.A.
ration, including its later-convicted exec- §§ 16-5-3(a) and 16-5-23(a) was not void
utives, was to increase the value of the because the factual allegations in the in-
stock, includinganystockowned and con- dictmentsufficientlydescribedtheoffense
trolled by the taxpayer. Schroerlucke v. ofinvoluntary manslaughter in the com-
United States, 100 Fed. CI. 584 (Fed. CI. mission ofthe unlawful act ofsimple bat-
2011). tery.Morrisv. State,310Ga.App. 126, 712
Cited in DeLongv. State, 310 Ga. App. S.E.2d 130 (2011).
16-1-6. Conviction for lesser included offenses.
JUDICIAL DECISIONS
Analysis
Armed Robbery
Assault
2012 Supp.
16-1-6 GENERAL PROVISIONS 16-1-6
Controlled Substances
Kidnapping
Murder
Rape
Child Molestation
Other Offenses Involving Children
Miscellaneous Crimes
Armed Robbery quired proofofa less serious injury than
the aggravated battery. Thomas v. State,
Separate convictions for armed 310 Ga. App. 404, 714 S.E.2d 37 (2011).
robbery and aggravated assaultwere Aggravated assault did—not merge
barred, etc. into aggravated battery. Crimes did
Defendants'robberyand aggravated as- not merge legally or factually because
sault convictions, under O.C.G.A. aggravated assault required proof that
§§ 16-5-21 and 16-8-40, merged because, the defendant assaulted the victim using
while aggravated assault did not require a deadly weapon, aggravated battery re-
takingproperty from another, aggravated quired proof that the defendant mali-
assault was proved by the same or less ciously caused bodily harm to the victim
than allfacts requiredto showrobbery, as by rendering a member of the victim's
theassaultformingthebasisoftheaggra- body useless, and kidnapping required
vated assault with intent to rob, which asportation of the victim. The offenses
was pointing a pistol at the victim, was were distinct with each requiring proofof
"contained within"the element ofrobbery a fact which the others did not. Reynolds
requiring the defendants to have used v. State, 311 Ga.App. 119, 714 S.E.2d 621
(2011).
force, intimidation, threat or coercion, or Aggravated assault and kidnap-
placed the victim in fear of immediate —
ping. Crimes did not merge legally or
seriousbodilyinjury. Washingtonv. State, factually because aggravated assault re-
310 Ga. App. 775, 714 S.E.2d 364 (2011). quired proofthatthe defendant assaulted
Defendant's conviction for aggravated the victim using a deadly weapon, aggra-
assault merged into the defendant's con- vated battery required proofthat the de-
viction for attempted armed robbery be- fendantmaliciouslycausedbodilyharmto
cause the relevant aggravated assault the victim by rendering a member ofthe
provision did not require proofofanyfact victim's body useless, and kidnapping re-
that was not also required to prove the quired asportation of the victim. The of-
attempted armed robbery as that offense fenses were distinct with each requiring
could have been proved under the indict- proof of a fact which the others did not.
mentinthecase. Garlandv. State,311 Ga. Reynolds v. State, 311 Ga. App. 119, 714
App. 7, 714 S.E.2d 707 (2011). S.E.2d 621 (2011).
Assault Possession ofdestructive device of-
fense did not merge with aggravated
—
Aggravated assaultmerged into ag- assault. Defendant's aggravated as-
gravated battery. sault and possession of a destructive de-
Defendant's aggravatedbattery and ag- viceconvictionsdidnotmergebecausethe
gravated assault convictions merged be- possession offense required that the
cause the counts of the indictment were weapon function in a certain way and
based on the same conduct ofhitting the have certain dimensions, and the assault
victim with a hammer, resulting in seri- offense required that the victim was con-
ous bodily injury to thevictim's hand and scious oftheriskofimmediatelyreceiving
one ofthe victim's fingers being rendered a violent injury by use of an offensive
useless when the victim placed the vic- weapon. Because each offense required
tim's hands up in an attempt to protect proofofa fact not required for the other,
the victim's head; the aggravated assault there was no merger under the required
was alesserincludedoffense ofthe aggra- evidence test. Mason v. State, 312 Ga.
vated battery because the assault re- App. 723, 719 S.E.2d 581 (2011).
2012 Supp.
16-1-6 CRIMESAND OFFENSES 16-1-6
Controlled Substances Indictment charging involuntary
Imposition of separate trafficking manslau—ghter by simple battery suf-
— ficient. Indictmentchargingthedefen-
sentences proper. Trial court did not dant with involuntary manslaughter by
err under O.C.G.A. §§ 16-1-6(2) and the commission of the unlawful act of
16-l-7(a)(l) by sentencing the defendant simple battery in violation of O.C.G.A.
separately for trafficking in methamphet- §§ 16-5-3(a) and 16-5-23(a) was not void
amine, in violation of O.C.G.A. because the factual allegations in the in-
§ 16-13-31, and trafficking in ecstasy, in dictmentsufficientlydescribedtheoffense
violation of O.C.G.A. § 16-13-31.1, when ofinvoluntary manslaughter in the com-
the substance which was found in the mission ofthe unlawful act ofsimple bat-
defendant'svehicletestedpositiveforboth tery. Morrisv. State,310Ga.App. 126, 712
methamphetamine and ecstasy as there S.E.2d 130 (2011).
was noevidencethatchemicalcompounds Aggravated battery merged with
or elements were shared between the malice murder.
drugs. Ahmad v. State, 312 Ga. App. 703, Evidence of a three-year-old child's in-
719 S.E.2d 563 (2011). juries and death was sufficient to support
the defendant's convictionformalicemur-
Kidnapping
der, felony murder, aggravated assault,
Aggravated assault and kidnap- and aggravated battery; however, the de-
ping. fendant's conviction for aggravated bat-
Trial court did not err in declining to tery based on the fracture of the child's
mergekidnappingcountswithaggravated ribs should have been merged into the
assault counts because the aggravated defendant's conviction for murder under
assault involved different conduct from O.C.G.A. § 16-l-6(b). Soilberry v. State,
the kidnapping and was completed prior 289 Ga. 770, 716 S.E.2d 162 (2011).
thereto and, thus, the same conduct did Rape
not establish the commission of both of-
fenses; even ifthe kidnapping counts in- Merger of attem—pted rape and ag-
volved the same conduct as the aggra- gravatedassault. Defendant's convic-
vated assault, neitherwas includedinthe tion for aggravated assault with intent to
other after application of the "required rape under O.C.G.A. § 16-5-21(a)(l)
evidence"test.Jonesv. State, 290 Ga. 670, mergedintothe defendant's convictionfor
No. S12A0040, 2012 Ga. LEXIS 256 attempted rape under O.C.G.A. §§ 16-4-1
(2012). (criminal attempt) and 16-6-1 (rape) be-
cause the same evidence supported both
Murder
convictions and, therefore, the aggravated
Aggravated assault and malice assault conviction was vacated. Smith v.
murder. State, 313 Ga. App. 170, 721 S.E.2d 165
Defendant's conviction for aggravated (2011).
assault ofthe victim merged into the con- Child Molestation
viction for malice murder of the victim
because there was no evidence that the Child mo—lestation and cruelty to
victim suffered a non-fatal injury prior to children. Trial court did not err in
a deliberate interval in the attack and a failing to merge the defendant's convic-
fatal injury thereafter; the forensic pa- tions for child molestation, O.C.G.A.
thologist who conducted the autopsy cat- § 16-6-4(a), and cruelty to children be-
alogued the victim's wounds as "chop in- causeeachcrimerequiredproofofatleast
juries" that fractured the victim's skull one additional element that the other did
and incapacitated the victim and were not, and thus, even if the same conduct
likely inflicted with a hatchet, punctures established the commission ofboth child
and superficial, deep, and very deep inci- molestation and cruelty to children, the
sions and stab wounds that were inflicted two crimes did not merge; cruelty to chil-
byknives.Alvelov. State,290Ga. 609, 724 dren, but not child molestation, requires
S.E.2d 377 (2012). proofthatthevictimwasachildunderthe
2012 Supp.
16-1-6 GENERAL PROVISIONS 16-1-7
age of 18 who was caused cruel or exces- to children in the second degree and con-
sive physical or mental pain, O.C.G.A. tributing to the deprivation of a minor
§ 16-5-70(b), andin contrast, childmoles- each have at least one essential element
tation, but not cruelty to children, re- that the other does not: causing the child
quires proofthat the victim was under 16 cruel or excessive physical or mental pain
years ofage and that the defendant per- and wilfully failing to provide the child
formed an immoral or indecent act upon with the proper care necessary for his or
or in the presence of the child for the her health, respectively. Staib v. State,
purpose of arousing or satisfying the de- 309 Ga. App. 785, 711 S.E.2d 362 (2011).
fendant's or the child's sexual desires,
Miscellaneous Crimes
O.C.G.A. § 16-6-4(a). Chandler v. State,
309 Ga. App. 611, 710 S.E.2d 826 (2011). Harassing ph—one calls and aggra-
Other Offenses Involving Children vated stalking. Trial court didnot err
by failing to give the defendant's re-
Deprivat—ionofminorandcrueltyto quested charges on the lesser included
children. Trial court did not err in offenses ofharassing phone calls and vio-
failing to merge the defendant's misde- lation ofa temporary protective order be-
meanorconvictionsforcontributingtothe causethestate'sevidencewas sufficientto
deprivation of a minor, O.C.G.A. establish all ofthe elements ofthe aggra-
§ 16-12-l(b)(3), with the defendant's cor- vated stalking offenses as indicted; under
responding felony convictions for cruelty the evidence, either the defendant was
to childreninthe second degree, O.C.G.A. guilty of the indicted offenses or the de-
§ 16-5-70(c), pursuant to the "required fendant was guilty ofno offense whatso-
evidence"test, the offenses did not merge ever. Brooks v. State, 313 Ga. App. 789,
as a matter oflaw; the offenses ofcruelty 723 S.E.2d 29 (2012).
16-1-7. Multiple prosecutions for same conduct.
JUDICIAL DECISIONS
Analysis
General Consideration
Included Crimes
2. CrimesAgainst the Person
3. CrimesAgainst Property
Joint Prosecution of Offenses
1. In General
2. CrimesAgainst the Person
4. Application to Other Crimes
Severance
3. Sentencing
General Consideration Included Crimes
Attachment ofjeopardy. 2. CrimesAgainst the Person
Trial court erred in holding that jeop- Armed robbery as included offense
ardy had not attached on the previous ofmalice murder.
charges filed againstthe defendantdueto Defendant's conviction for armed rob-
a mistrial because the defendant was berywas properly not merged into a mal-
placed in jeopardy when the jury was ice murder conviction pursuant to
sworn in the first trial. Herrington v. O.C.G.A. § 16-l-7(a)(l), based on the "re-
State, No. A11A1860, 2012 Ga. App. quired evidence" test, as each offense re-
LEXIS 328 (Mar. 23, 2012). quired proofofan element that the other
2012 Supp.
16-1-7 CRIMESAND OFFENSES 16-1-7
did not. Culpepper v. State, 289 Ga. 736, assault should have been merged into a
715 S.E.2d 155 (2011). — malice murder conviction pursuant to
Aggravated assault. Defendant's O.C.G.A. § 16-l-7(a)(l), based on the "re-
convictions for aggravated assault with a quired evidence" test, as the aggravated
deadly weapon and aggravated assault assault, as pled, did not require proofofa
withintenttomurdermergedforsentenc- fact not required to have been proved in
ingbecause both counts ofthe indictment the malice murder. Culpepper v. State,
alleged that the defendant committed ag- 289 Ga. 736, 715 S.E.2d 155 (2011).
gravated assault by slashing the victim's
Defendant's conviction for aggravated
neck; although one count alleged that the
assault ofthevictim merged into the con-
assault was done with a deadly weapon
waintdhthteheothienrteanltlegteod tchoamtmiittwamsurddoenr,e vbiecctaiuosnefotrhemraeliwcaesmnuordeevrideonfcethethavtictthiem
O.C.G.A. § 16-5-21(a)(l) and (a)(2), the victim suffered a non-fatal injury prior to
counts were clearly based on a single act a deliberate interval in the attack and a
since the razor or knife used in that as- fatal injury thereafter; the forensic pa-
sault broke while it was pressed against thologist who conducted the autopsy cat-
the victim's neck and, thus, the counts alogued the victim's wounds as "chop in-
merely charged the same act of aggra- juries" that fractured the victim's skull
vated assault being committed in two of and incapacitated the victim and were
the multiple ways set out in O.C.G.A. likely inflicted with a hatchet, punctures
§ 16-3-21. Thomas v. State, 310 Ga. App. and superficial, deep, and very deep inci-
404, 714 S.E.2d 37 (2011). sions and stab wounds that were inflicted
Aggrav—atedbatteryandaggravated byknives.Alvelov. State,290Ga. 609, 724
assault. Defendant's aggravated bat- S.E.2d 377 (2012).
teryconvictionsdidnotmergebecausethe Aggravated assault and armed rob-
counts ofthe indictment were predicated bery.
on different conduct; in orderto prove one Defendant's convictions for armed rob-
count ofthe indictment, the state had to bery and aggravated assault did not
show that the victim threw bleach in the merge because each crime required proof
victim's eyes, and in order to prove an- of conduct that the other did not; the
other count of the indictment, the state armed robbery as charged in the indict-
had to prove that the victim's finger was ment required proof of intent to rob and
rendered useless because the finger was that the victim's wallet was taken, while
repeatedly struck with a hammer. the aggravated assaults required proof
Thomas v. State, 310 Ga. App. 404, 714 that the victim's neck was slashed with a
S.E.2d 37 (2011). sharp weapon. Thomas v. State, 310 Ga.
Aggravated assault with—deadly App. 404, 714 S.E.2d 37 (2011).
weapon and with object. Defen- Trial court erred in failingto merge the
dant's convictions for aggravated assault defendant's conviction for aggravated as-
with a deadly weapon and aggravated sault with a deadly weapon, O.C.G.A.
assault with an object, device, or instru- § 16-5-21(a)(2), into the defendant's con-
ment did not merge because the counts of viction for armed robbery conviction,
the indictment requiring the state to O.C.G.A. § 16-8-41(a), because the act of
prove that the defendant slashed the vic- using an offensive weapon for the pur-
tim'sneckwithasharp-edgedinstrument, poses of committing an armed robbery
hit the victim with a hammer and was the legal equivalent ofassaultforthe
wrapped a cord around the victim's neck purposes ofcommittingan aggravated as-
with the intent to murder were based on sault; it is not determinative under the
differentconductand mergerofthosecon- merger analysis that the desired object of
victions was not required. Thomas v. a defendant's armed robbery was some-
State, 310 Ga. App. 404, 714 S.E.2d 37 thing other than that which he or she
(2011). actually took, but instead, what dictates
Aggravated assault and malice merger is the fact that both crimes for
murder. which the defendant was convicted were
Defendant's conviction for aggravated predicated upon the same conduct. Hallv.
2012 Supp.