November 10, 2014
Reconsideration denied November 21, 2014 -- Cert. applied for.
Statutory rape. Forsyth Superior Court. Before Judge Bagley.
Banks & Stubbs, Rafe Banks III, for appellant.
Penny A. Penn, District Attorney, Ramsey R. Magaro, Assistant District Attorney, for appellee.
DILLARD, Judge. Doyle, P. J., and Miller, J., concur.
Todd Algren was charged in one indictment with one count of statutory rape and was charged in a second indictment, pertaining to a separate victim, with two counts of child molestation. Following a joinder of the indictments and a consolidated trial, the jury found him guilty on the statutory-rape charge and not guilty on the child-molestation charges. Algren appeals his conviction and the denial of his motion for new trial, arguing that the trial court erred in joining the two indictments for trial, failing to charge the jury as to similar-transaction evidence, improperly charging the jury that a child under the age of 16 years cannot consent to sexual intercourse, and sentencing him for felony statutory rape. For the reasons set forth infra, we affirm Algren's conviction.
Viewed in the light most favorable to the jury's verdict, the record shows that S. H. and her older brother had lived with their aunt and uncle since 2005. In June 2008, S. H.'s aunt and uncle, who were both avid scuba divers, planned a diving vacation to the Florida Keys. Consequently, they registered then 14-year-old S. H. and her 16-year-old brother for scuba diving lessons with Algren, who was a certified diving instructor and operated a local dive shop. On the morning of June 29, having completed most of their certification requirements over the course of the previous week, S. H. and her [330 Ga.App. 2] brother met Algren at a coffee shop and then went to a nearby swimming pool for some additional training.
Some time around noon, S. H., her brother, and Algren returned to the dive shop to unload their gear and other equipment, and after doing so, S. H.'s brother offered to go pick up some fast-food for lunch. A few minutes after her brother left the shop, S. H. and Algren, who had been flirting with each other for a couple of days via text messages and phone calls, began kissing. They then went to a room at the back of the dive shop, at which point Algren removed S. H.'s shorts and her bathing suit and had sexual intercourse with her. Subsequently, S. H. and Algren put their clothes back on, and returned to the front part of the dive shop just as S. H.'s brother returned from picking up their lunch.
A few days thereafter, Algren called S. H. at her home to discuss scheduling a time for her to fulfill one of the swimming requirements that she had yet to meet. And during this conversation, S. H. and Algren continued flirting and discussed their sexual liaison. Algren also asked S. H. if she wanted to have sex again and inquired as to whether there
was any chance she could be pregnant, given the fact that they did not use protection during their first encounter. But while S. H. and Algren were talking, S. H.'s uncle, who was suspicious that S. H. was dating a former classmate despite being forbidden to do so, quietly picked up another phone in the house, heard nearly the entire conversation, and realized that S. H. was speaking with Algren.
Not long after S. H. and Algren ended their phone call, S. H.'s aunt and uncle confronted her regarding the conversation that her uncle overheard. Initially, S. H. denied that anything inappropriate occurred, but she eventually admitted that she and Algren had sexual intercourse. That same day, S. H.'s aunt and uncle reported the incident to local law enforcement, who then scheduled a forensic interview for S. H. and began an investigation into S. H.'s allegation against Algren.
While the investigation of S. H.'s statutory-rape allegation was pending, Algren was living with his girlfriend and her two young children. And on April 29, 2010, approximately a year and a half after S. H.'s allegation, K. R., the nine-year-old daughter of Algren's girlfriend, informed a counselor at her elementary school that one night, during the summer of 2009, Algren came into her bedroom and touched her breasts and privates. The counselor contacted K. R.'s mother and reported the child's outcry to DFCS and law enforcement, which then began a second investigation of Algren.
[330 Ga.App. 3] Subsequently, Algren was charged, via indictment, with one count of statutory rape, alleging that he engaged in sexual intercourse with S. H. And in a second indictment, he was charged with two counts of child molestation, alleging that he touched K. R.'s breasts and privates. Prior to trial, the State moved to join the two indictments and try all three charges simultaneously. Algren opposed joinder, but following a hearing on the issue, the trial court granted the State's motion and joined the indictments for trial.
The case was then tried and concluded with the jury finding Algren guilty on the statutory-rape charge but not guilty on the two child-molestation charges. Following a sentencing hearing, the trial court imposed a sentence of twenty years upon Algren with ten years to serve in confinement. Subsequently, Algren obtained new counsel and filed a motion for new trial, which the trial court denied. This appeal follows.
1. Algren first contends that the trial court erred in joining the separate indictments for trial in the same proceeding. We disagree.
The Supreme Court of Georgia has held that if charges against a defendant are " joined solely because they are of the same or similar character, a defendant has an absolute right to sever."  This is so because of the " great risk of prejudice from a joint disposition of unrelated charges."  However, severance is not required where " the similarity of the offenses is coupled with evidence of a pattern which shows a common motive, plan, scheme, or bent of mind."  More precisely, offenses have not been joined solely because they are " of the same or similar character when the evidence of one offense can be admitted as similar transaction evidence during the trial of the other offense" ;  and " severance is not mandatory in such a case." 
But this does not end a trial court's inquiry because,
while the fact that evidence of one offense would be admissible in a trial of another offense is a relevant consideration in determining whether to sever, a trial court must still [330 Ga.App. 4] determine if severance of the offenses would promote a fair and intelligent
determination of guilt or innocence as to each offense.
In doing so, the court should consider whether, " in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense."  Finally, we review a trial court's decision in this regard for an abuse of discretion.
In the case sub judice, Algren's trial only involved one charge of statutory rape, which pertained to S. H.'s allegations, and two charges of child molestation, which pertained to K. R.'s allegations. And neither the facts surrounding the offenses, nor the evidence presented to prove such facts, was complicated. Consequently, Algren could not show that there was any danger that the jury would be confused or unable to distinguish the evidence and apply the law as to each offense. Indeed, the verdict itself, including Algren's acquittal for the two child-molestation charges, shows that the jury fully understood the law and evidence.
Furthermore, all of the indicted offenses involved the same type of conduct, i.e., inappropriate sexual conduct with young girls over whom Algren wielded some level of authority, and they occurred within nearly one year of each other. Thus, even if the trial court had not joined the indictments, the allegations of child molestation would have been admissible in Algren's statutory-rape trial as similar-transaction evidence. And as noted supra, when the evidence of one offense can be admitted as similar-transaction evidence during the trial of the other offense, " the decision of whether to sever the offenses [330 Ga.App. 5] for trial is within the discretion of the trial court."  Given these circumstances, we conclude that the trial court did not abuse its discretion in joining the separate indictments against Algren for trial.
2. Algren also contends that the trial court erred by failing to charge the jury on the law regarding similar-transaction evidence. Once again, we disagree.
Initially, it is important to note that Algren did not object to any portion of the trial court's jury charges, and under OCGA § 17-8-58, " [a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate."  The failure to so object precludes " appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties."  In such cases, as the Supreme Court of Georgia
has explained, " the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings."  Thus, because Algren failed to object whatsoever to the jury charges, our review is limited to consideration in this regard.
Here, Algren is correct that the trial court did not instruct the jury on the law regarding similar-transaction evidence. But this failure does not constitute error by the trial court because the State did not present any similar-transaction evidence against Algren. Indeed, as discussed at length supra, the State argued successfully in favor of joining the two indictments on the ground that the child-molestation charges would be admissible in the statutory-rape trial as similar-transaction evidence. Nevertheless, the simple fact is that once the trial court joined the indictments, Algren was actually tried [330 Ga.App. 6] (and acquitted) on the child-molestation charges. Put simply, evidence pertaining to those charges was part of the State's case-in-chief, rather than evidence of similar transactions. And in trying Algren on those charges, the trial court properly instructed the jury that the State was required to prove those charges beyond a reasonable doubt.
It is, of course, well settled that a defendant is not " entitled to a jury charge on legal issues which are irrelevant, not tailored to the evidence or factually inapplicable."  And given that Algren was indicted and tried on the child-molestation charges, characterizing them as similar-transaction evidence in a jury charge would have been in error. Accordingly, the trial court did not commit plain error in refusing to charge the jury on the law regarding similar-transaction evidence.
3. Algren further contends that the trial court erred in charging the jury that a child under the age of 16 years cannot consent to sexual intercourse, arguing that, under OCGA § 24-4-412, evidence of the victim's consent is relevant even in statutory-rape cases. Again, we disagree.
At the outset, we note that the fundamental rules of statutory construction require us to " construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage."  Put another way, when we consider the meaning of a statute, we must (1) " presume that the General Assembly meant what it said and said what it meant,"  and (2) " read the statutory text in its most natural [330 Ga.App. 7] and reasonable way, as an ordinary speaker of the English language would."  As our Supreme Court recently explained,
[i]n our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we consider its legal context as well. After all, context is a primary determinant of meaning. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law--constitutional, statutory, and common law alike--that forms the legal background of the statutory provision in question.
This is what we mean when we speak of discerning " the intent of the legislature,"  as that " intent" is reflected in the relevant statutory text and its contextual backdrop.
Turning to the statute at issue, under the new Evidence Code, the revision of the Georgia Rape Shield Statute included only minimal changes and left the former version of the statute largely untouched. That being said, OCGA § 24-4-412 (b) of the Rape Shield Statute provides:
In any prosecution for rape in violation of Code Section 16-6-1; aggravated assault with the intent to rape in violation of Code Section 16-5-21; aggravated sodomy or sodomy in violation of Code Section 16-6-2; statutory rape in violation of Code Section 16-6-3; aggravated child molestation or child molestation in violation of Code Section 16-6-4; incest in violation of Code Section 16-6-22; sexual battery in violation of Code Section 16-6-22.1; or aggravated sexual battery in violation of Code Section 16-6-22.2, evidence relating to the past sexual behavior of the complaining witness may be introduced if the court, following the procedure described in subsection (c) of this Code section, finds that the past sexual behavior directly involved the participation of the accused and finds that the evidence expected to be introduced supports an inference that the accused could have [330 Ga.App. 8] reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.
Ignoring the fact that in Georgia it is unquestionably a crime to have physical sexual contact with a person 15 years of age or younger, Algren argues that because OCGA § 24-4-412 (b) includes statutory rape as one of the prosecutions for which evidence of the victim's past sexual behavior may be admissible to support a defendant's belief that the victim consented to the sexual conduct at issue, the trial court, here, erred in charging the jury that " [a] child under the age of 16 cannot consent to sexual acts." However, while Algren's argument perhaps demonstrates that the drafters of OCGA § 24-4-412 (b) lacked an eye for detail, ultimately, it is neither clever nor particularly novel. Indeed, construing the former version of the statute, which as previously noted was only minimally changed in the new Evidence Code, this Court held that although evidence of a victim's past sexual behavior may be admissible under exceptions to the statute relating to whether the victim consented, when the complaining victim has " no legal capacity to consent, the statutory exceptions do not apply." 
Moreover, under the plain language of OCGA § 24-4-412 (b), the only evidence of the victim's past sexual behavior that is admissible
to support a defendant's belief that the victim consented to the sexual conduct at issue is past sexual behavior with the defendant. Thus, pursuant to Algren's argument, evidence that S. H. consented would necessarily entail evidence that she and Algren engaged in prior sexual acts, to which she could not consent under current law. Suffice it to say, we flatly refuse to construe Georgia's Rape Shield Statute in a manner that would necessarily imply that the General Assembly intended for that statute to supplant the clear dictates of our criminal code. Accordingly, the trial court did not plainly err in charging the jury that a child under the age of 16 years cannot consent to sexual intercourse.
[330 Ga.App. 9] 4. Finally, Algren contends that the trial court erred in sentencing him for felony statutory rape, rather than the misdemeanor offense, given that the jury did not make a specific finding as to his or S. H.'s age. Once again, we disagree.
Under OCGA § 16-6-3 (a), " [a] person commits the offense of 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, provided that no conviction shall be had for this offense on the unsupported testimony of the victim." The sentencing provision of OCGA § 16-6-3 is divided into felony and misdemeanor subsections. Subsection (b) provides:
Except as provided in subsection (c) of this Code section, a person convicted of the offense of statutory rape shall be punished by imprisonment for not less than one nor more than 20 years; provided, however, that if the person so convicted is 21 years of age or older, such person shall be punished by imprisonment for not less than ten nor more than 20 years. ...
But under subsection (c), " [i]f the victim is at least 14 but less than 16 years of age and the person convicted of statutory rape is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor."
Relying on Apprendi v. New Jersey, Algren argues, as previously noted, that because the jury did not make a specific finding as to his or S. H.'s age, he should have only been sentenced for misdemeanor statutory rape, pursuant to OCGA § 16-6-3 (c). In Apprendi, the Supreme Court of the United States held that " [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."  But importantly, the focus of Apprendi and its progeny is that " a jury must find those facts which increase the punishment for a crime; [those cases] do not suggest that the jury must find those mitigating facts which decrease the punishment for a crime."  And with regard to Georgia's statutory-rape statute, this Court previously addressed this issue and held that [330 Ga.App. 10] the language in OCGA § 16-6-3 (c) establishes mitigating factors that decrease the felony punishment for the crime of statutory rape to misdemeanor punishment, and, thus, there is no constitutional requirement that their presence or absence be found by the jury.
Here, the indictment charged Algren with " the offense of Statutory Rape (OCGA § 16-6-3)" in that Algren " being older than 21 years of age, did engage in sexual intercourse with [S. H.], a person under 16 years of age and not the spouse of the accused ... ." Additionally, the undisputed evidence at trial proved that S. H. was 14 years old and that she was not Algren's spouse at the time they engaged in sexual intercourse. Given these circumstances, the trial court was not required to sentence Algren for misdemeanor statutory rape, pursuant to OCGA § 16-6-3 (c). Accordingly, the trial court did not err in sentencing Algren for felony statutory rape.
Doyle, P. J., and Miller, J., concur.