Cert. applied for.
Sex offender registry. Coweta Superior Court. Before Judge Duffey, Senior Judge.
Peter J. Skandalakis, District Attorney, Robert W. Mooradian, Assistant District Attorney, for appellant.
The Kirk Law Firm, Christa L. Kirk, for appellee.
BARNES, Presiding Judge. Miller and Boggs, JJ., concur. Doyle, P. J., concurs in judgment only. Ellington, P. J., Dillard and Branch, JJ., dissent.
Barnes, Presiding Judge.
The trial court granted Petitioner Randle's request to be released from Georgia's sex offender registration requirements. The State filed an application for discretionary appeal, which we granted. This appeal followed in which the State contends that because Randle's underlying sexual offense involved physical contact with the genitals of the victim, it created a presumption that the victim suffered " intentional physical harm," precluding Randle's release from the registration requirements. See OCGA § § 17-10-6.2 (c) (1) (D); 42-1-19 (a) (4). The State also argues more generally that Randle had the burden to establish a prima facie case for release from the registration requirements but failed to satisfy it. For the reasons discussed below, we conclude that the trial court did not abuse its discretion in releasing Randle from the registration requirements and therefore affirm.
The record reflects that in 1993, Randle entered a negotiated plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (91 S.Ct. 160, 27 L.Ed.2d 162) (1970) to one count of child molestation. The indictment alleged that in 1991, Randle committed an act of child molestation by placing his hands on the genitals of a minor. Randle was 21 years old at the time of his conviction. The trial court sentenced Randle to eight years, with the first three years to be served in confinement and the remaining five years on probation. As [331 Ga.App. 2] a result of his conviction and sentence, Randle was required to register as a sex offender in Georgia under the provisions of OCGA § 42-1-12.
Randle served his sentence and was released from probation in 2001. In 2002, Randle applied for and obtained restoration of his civil and political rights (excluding certain firearm-related rights) from the State Board of Pardons and Paroles. In 2013, Randle filed a petition for release from the sex offender registration requirements pursuant to OCGA § 42-1-19 (a) (4).
The trial court conducted a hearing on Randle's petition. At the hearing, Randle tendered certified copies of his indictment and sentence for child molestation, the transcript of his plea hearing for that offense, and his criminal history from the Georgia Crime Information Center reflecting no other arrests or convictions. The parties stipulated that Randle had completed all sex offender treatment and assessments required as part of his probation; that he had not committed any probation violations; that he " did well while on probation and as well in his treatment" ; and that he had no additional criminal history.
Randle, then 42 years old, testified that he has had physical custody of his 14-year-old daughter for five years, has been working in the technology field for 15 years and provides for himself and his daughter, and continued treatment after his probation ended because he " felt that it was very helpful." Randle testified that based on what he had learned in his treatment, he " will not put [him]self in a position where anything like this could happen again or even the perception of this [could] happen again." Randle further testified that he has never committed any other offenses and has properly registered as a sex offender every year as required. Randle explained that he wanted to be removed from the sex offender registry so that his daughter would not be bullied by others who might find his registration online. Randle also noted that he would come home and find signs in his yard with his picture on it that stated such things as " sex offender lives here."
On cross-examination, Randle admitted that he had pled guilty under Alford to putting his hands on the genitals of a minor and that there had been physical contact between himself and the victim. Randle further admitted on cross-examination that in light of the victim's age, the victim probably did not like or want the contact.
[331 Ga.App. 3] Randle was the only person to testify at the hearing. The State did not present any evidence, but the prosecutor argued that Randle should not be released from the sex offender registration requirements because he had the burden of making out a prima facie case that the criteria for release had been met but had failed to do so. According to the prosecutor, the evidence of Randle's touching of the child victim's genitals with his hands created a presumption that the victim suffered " intentional physical harm" such that the requirement imposed by OCGA § 17-10-6.2 (c) (1) (D) for release had not been met. See OCGA § 42-1-19 (a) (4).
At the conclusion of the hearing, the trial court remarked that while the court had never before released someone from the sex offender registration requirements, the court would grant Randle's petition under the circumstances here. The trial court noted that Randle's offense occurred 21 years ago, there had been no other incidents since that time, and that based on Randle's testimony at the hearing, the court was " convinced that this will never happen again." The trial court subsequently entered an order granting Randle's petition for release from the sex offender registration requirements pursuant to OCGA § 42-1-19 (a) ...