MILLER, P. J., BROWN and GOSS, JJ.
Miller, Presiding Judge.
Cherokee County grand jury indicted Laura Rich on three
counts of sexual assault of a student under OCGA §
16-6-5.1 (b) (1), Rich moved to dismiss or quash the
indictment, contending that she was not a "teacher"
for purposes of the statute. The trial court granted
Rich's motion, finding that even if OCGA § 16-6-5.1
(b) (1) applied to Rich, it did not apply to her conduct
beyond school hours. The State appeals from the trial
court's order granting Rich's motion to dismiss or
quash the indictment. We affirm the trial court's
decision to grant the motion because in accordance with the
relevant principles of statutory construction, Rich was not a
"teacher" for purposes of OCGA § 16-6-5.1 (b)
interpretation of a statute is a question of law, which is
reviewed de novo on appeal. Because the trial court's
ruling on a legal question is not due any deference, we apply
the 'plain legal error' standard of review."
(Citation omitted.) State v. Hammonds, 325 Ga.App.
815 (755 S.E.2d 214) (2014). "We also bear in mind that
the application of a statute's standards sometimes
requires an assessment of the surrounding circumstances to
determine if the statute is violated." (Citation and
punctuation omitted). Smith v. State, 311 Ga.App.
757, 758 (717 S.E.2d 280) (2011).
viewed, the record shows that in 2017, a Cherokee County
grand jury indicted Rich on three counts of sexual assault of
a student, in violation of OCGA § 16-6-5.1 (b) (1). The
indictment alleged that Rich, "being a teacher"
"with supervisory and disciplinary authority" over
two persons, engaged in sexual contact with them in 2015, and
that she knew or should have known that they were students
enrolled at the school where she was employed.
Rich was arraigned, she filed a motion to dismiss or quash
the indictment. Rich argued that (1) she was not a
"teacher" within the meaning of the statute because
she was a substitute without a teaching certificate; and (2)
her supervisory and disciplinary authority over the students
ceased at the end of each school day that she worked as a
daily substitute, and the alleged sex acts did not occur
during school hours.
hearing on the motion, the trial court heard testimony from
the principal of the public school at issue, as well as one
of the Human Resources Directors for the Cherokee County
School District where the school is located. Public school
teachers in the Cherokee County School District have either a
teaching certificate or permit from the Georgia Professional
Standards Commission ("PSC"), which is the
licensing body for education in the State of
Georgia. Generally, a teacher becomes certified by
attending a teaching education program approved by the PSC.
Student teachers "go through a pre-approved program
with the State of Georgia" and hold a "pre-service
on the other hand, need not be certified by the PSC. And,
unlike public school teachers in the Cherokee County School
District, substitutes do not work under contracts with
schools. Instead, substitutes receive a daily per diem for
their work, and do not qualify for health benefits,
unemployment benefits, or leave. According to the testimony,
the PSC defines a substitute as either "an individual
employed to serve in the absence of the regularly employed
teacher" or "a person temporarily employed to teach
a class that does not have a regular teacher."
order to be a part of the "pool" of substitutes for
the Cherokee County School District, prospective substitutes
complete an on-line application, undergo a background check,
and then participate in a three-and-a-half to four-hour
workshop on "cursory items that they may or may not face
in the classroom." Although substitutes must abide by
the Code of Ethics for Educators, paraprofessionals and aides
also adhere to this Code.
substitute may work on either a "long-term" or
"daily" basis. Rich was a daily substitute at the
school, holds a high school diploma, and is not certified by
the PSC. Because Rich did not possess a teaching certificate,
she was a "classified employee," like cafeteria
workers and maintenance staff. A daily substitute works on a
temporary, as-needed basis, and fills in for a teacher who
will be absent for either a single day or a few days. A daily
substitute is not expected to prepare for class, prepare any
homework assignments, administer any state-mandated tests,
grade or evaluate students' work, answer students'
questions after class, or participate in after-school
programs. Although daily substitutes have an ongoing duty of
confidentiality pertaining to the students, their
responsibilities to the students cease at the end of the
school day and do not extend beyond "that eight-hour
threshold." Upon the end of the school day, the daily
substitute returns to the "pool" of available
order to begin working, a daily substitute can select an
available job from an online system, or call the
principal's secretary and ask whether the school has an
available job. Alternatively, he or she can await an
"early morning call" informing of an opening. Once
in the classroom, the substitute ensures that the students
have been provided with their individual lesson plans or
"study guide packets." The students would either
already have their packets in their possession, or would
already know the work that they have been assigned by their
regular teacher. As the students work on their packets, the
substitute "might be able to assist" in completing
them. If a student has questions while working, the
substitute would answer these questions if he or she is
capable of doing so, depending on the substitute's
understanding of the material. Essentially, daily substitutes
assist "[w]hen they could and where they could."
When a student has completed his or her packet, the
substitute "may take it, but then hold it for the return
of the regular teacher." In the event that the regular
teacher has not left instructions for the class, the
substitute either looks for an emergency lesson plan or
"go[es] to the other teachers in that particular subject
to figure out what to do."
teacher is absent for more than 10 consecutive days, and a
long-term substitute is needed, preference for filling the
slot is given to substitutes who are certified with the PSC.
Like teachers, these long-term substitutes are "expected
to assume responsibilities for lesson planning and evaluating
and grading the students' work."
the hearing, the trial court granted Rich's motion,
finding that as a daily substitute Rich bore no obligation to
the school district when she left school after substituting.
The trial court therefore concluded that if OCGA §
16-6-5.1 (b) (1) applied to Rich, it did so only while she
performed her duties during the school day. Because there was
no allegation that the sex acts occurred during school hours
or at the school, the trial court found that the statute was
inapplicable to Rich's conduct. The State now appeals.
sole enumeration of error, the State contends that the trial
court erred in granting Rich's motion to dismiss or quash
the indictment because Rich qualified as a
"teacher" under OCGA § 16-6-5.1 (b) (1). The
State posits that Rich frequently accepted "teaching
assignments" at the school, was heavily relied upon by
the school, had worked frequently during the relevant times
identified in the indictment, and essentially ...