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Lemery v. State

Court of Appeals of Georgia

February 9, 2015

LEMERY
v.
THE STATE

Human trafficking. Douglas Superior Court. Before Judge Emerson.

Mary Erickson, for appellant.

Brian K. Fortner, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

OPINION

Page 801

Ellington, Presiding Judge.

A Douglas County jury found Steven Lemery guilty of six counts of trafficking young males for sexual servitude, OCGA § 16-5-46 (c);

Page 802

one count of pandering by compulsion, OCGA § 16-6-14; three counts of aggravated child molestation, OCGA § 16-6-4 (c); and one count of enticing a child for indecent purposes, OCGA § 16-6-5 (a). Lemery contends that the evidence was insufficient to support his convictions for trafficking an adult victim. He also argues that his trial attorney was ineffective and that the trial court erred in failing to order, sua sponte, a competency hearing and in denying appellate counsel's post-conviction request for funds for an independent forensic psychiatric evaluation. Finding no reversible error, we affirm.

1. Lemery contends that the evidence was insufficient to support his convictions for trafficking one of his three victims, R. M.[1] He argues that he did not subject R. M., his adult boyfriend, to sexual servitude; rather, he contends that the evidence shows that R. M. willingly prostituted himself in order to " maintain" him, and that Lemery " was the 'kept' one in the relationship."

Under Georgia law, a person commits the offense of human trafficking for sexual servitude when he or she " knowingly subjects another person to or maintains another person in sexual servitude or knowingly recruits, entices, harbors, transports, provides, or obtains by any means another person for the purpose of sexual servitude." OCGA § 16-5-46 (c). Sexual servitude is defined, in relevant part, as

(A) Any sexually explicit conduct or performance involving sexually explicit conduct[[2]] for which anything of value is [330 Ga.App. 624] directly or indirectly given, promised to, or received by any person, which conduct is induced or obtained by coercion or deception ... ; or
(B) Any sexually explicit conduct or performance involving sexually explicit conduct which is performed or provided by any person, which conduct is induced or obtained by coercion or deception[.]

OCGA § 16-5-46 (a) (6). The law specifically provides that the " age of consent for sexual activity ... of the person being trafficked shall not constitute a defense in a prosecution for a violation of this Code section." OCGA § 16-5-46 (d).

In determining whether R. M. was subjected to sexual servitude, the jury was authorized to consider whether R. M. was deceived or coerced into participating in sexually explicit conduct. OCGA § 16-5-46 (a) (6). " Deception" includes " [c]reating or confirming another's impression of an existing fact or past event which is false and which the accused knows or believes to be false[.]" OCGA § 16-5-46 (a) (2) (A). " Coercion" in this context is not limited to actual or threatened physical or legal restraint that overmasters the will of the victim.[3] Rather, OCGA § 16-5-46 (a) (1) defines " coercion" broadly to include a wide range of nonphysical harms, including those that are psychological, reputational, and financial:

" Coercion" means:
(A) Causing or threatening to cause bodily harm to any person, physically restraining or confining any person, or threatening to physically restrain or confine any person;
(B) Exposing or threatening to expose any fact or information or disseminating or threatening to disseminate any fact or information that would tend to subject a person to criminal or ...

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