Adams v. State

340 Ga.App. 1

795 S.E.2d 330

ADAMS

v.The STATE.

A16A1583

Court of Appeals of Georgia.

December 20, 2016

Jacob Dennis Rhein, for Appellant.

Joshua Bradley Smith, Rebecca Ashley Wright, for Appellee.

Peterson, Judge.

Dana Marie Adams bought marijuana for a 13-year-old boy before having sex with him several times. For these acts, she was convicted of aggravated child molestation, child molestation, and two counts of contributing to the delinquency of a minor. We affirm those convictions because the boy's testimony was sufficient evidence to support the jury's verdict, and because the trial court did not commit reversible error in admitting a 911 tape for purposes of impeachment.

But these were not Adams's only convictions. When Adams left her house to purchase marijuana, she left her two young children asleep at home alone for less than an hour. For the act of leaving her children alone for less than an hour, she was also convicted of two counts of contributing to the deprivation of a minor. But construing the relevant criminal statute strictly against the State requires us to conclude that merely leaving a child alone for less than an hour—without more—does not violate that statute. We reverse Adams's convictions for contributing to the deprivation of a minor.

1. On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury's verdict. See Watkins v. State , 336 Ga.App. 145, 146 (1), 784 S.E.2d 11 (2016). We neither weigh the evidence nor determine witness credibility, but only determine whether the evidence was sufficient to allow a jury to find guilt beyond a reasonable doubt. See id.

So viewed, the evidence shows that Adams has three children, K. R. and two children both with the initials R. A. and R. A.¹ At the time in question, K. R. was 12 years old and R. A. and R. A. were both under the age of five. Adams also spent a fair bit of time with her nephews, including T. B. In October 2011, T. B. and his cousin C. C.— both 13 years old—were spending the night at Adams's house.² Also present were Adams's three children and K. R.'s friend, J. M. At some point, C. C. asked Adams if she would give him $20 for washing her camper so that he would have money to buy some marijuana. Adams not only agreed to give C. C. the money, she said she would drive him to get the marijuana after she put her youngest two children to bed.

After putting those children to bed,³ Adams drove C. C., T. B., K. R., and J. M. to a location 10-15 minutes away where they waited another 15-20 minutes for the marijuana dealer to arrive. Adams, who had been drinking, backed into a fence and swerved all over the road during the drive. After they returned to Adams's house, Adams and the two boys went into the camper where they were joined by Adams's friend, Karen Morris. The four smoked marijuana, and Adams drank alcohol, which she shared with C. C. Both C. C. and Morris described Adams as drunk.

Morris left around midnight and took J. M. and K. R. back to her house to sleep. J. M. wanted to leave because Adams was drunk, and she was not sure what would happen. T. B. also left the camper and returned to the house. When Adams and C. C. were alone in the camper, Adams performed oral sex on C. C. and the two had intercourse. They returned to the house, where C. C. told T. B. what he had been doing. T. B. fell asleep in the computer room, and C. C. joined Adams in K. R.'s bed, where the two again had intercourse. K. R. returned home the next morning to get some clothes. When she found the front door locked, she went to her bedroom window and saw two people in her bed. Later that morning, C. C. and Adams went into Adams's bedroom where they again engaged in intercourse.

Adams drove C. C. home, and C. C.'s mother and her boyfriend both noticed a hickey on C. C.'s neck. C. C. initially did not tell any adult about the night's events because he did not want Adams to get in trouble. But the mother's boyfriend was suspicious and kept asking questions until C. C. finally told him what had happened. C. C.'s parents were then told, and his father contacted law enforcement.

Adams was indicted for aggravated child molestation for performing oral sex on C. C., child molestation for engaging in intercourse with C. C., contributing to the delinquency of a minor for encouraging and aiding C. C. in committing the delinquent act of possessing marijuana and alcohol, contributing to the delinquency of a minor for encouraging T. B. to commit the delinquent act of possessing marijuana and alcohol, and two counts of contributing to the deprivation of a minor for leaving her two youngest children unattended at home while she drove C. C. to purchase marijuana. At trial, Adams testified in her own defense and claimed that the allegations against her were untrue. The jury found Adams guilty of all charges.

(a) Adams argues that the evidence was insufficient to sustain her convictions for aggravated child molestation and child molestation. We disagree.

A person commits the offense of child molestation when ... she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. A person commits the offense of aggravated child molestation when [she] commits an offense of child molestation which involves an act of sodomy.

Frankmann v. State , 281 Ga.App. 1, 2, 635 S.E.2d 272 (2006) (footnotes and punctuation omitted). Here, C. C. testified that Adams performed oral sodomy on him and engaged him in sexual intercourse. This testimony was sufficient to establish the offenses of child molestation and aggravated child molestation. See id. (the testimony of the victim alone was sufficient to establish the offenses of child molestation and aggravated child molestation).

According to Adams, C. C.'s testimony should be disregarded because he had a motive to lie.⁴ It is, however, "the function of the jury to determine the credibility of the witnesses. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury's verdict." Scott v. State , 207 Ga.App. 334, 334, 427 S.E.2d 832 (1993) (punctuation omitted). Given C. C.'s testimony, the jury was authorized to find Adams guilty of molestation and aggravated molestation. See id.

(b) Adams argues that the evidence was insufficient to sustain her convictions for contributing to the deprivation of a minor. We agree.

The evidence indicates that the two youngest children were left alone for less than an hour. Adams argues that such an isolated act does not constitute deprivation unless it results in emotional or physical harm to the child. The State responds that it need not prove that the children suffered "actual harm" as a result of Adams's actions, suggesting that leaving the children alone for any length of time violates the law. As explained below, this case presents the question of whether leaving sleeping young children home alone during the night for less than an hour—without more, and without any harm occurring to them—deprives a child of the physical, mental, emotional or moral needs essential to the child's well-being. And here we must resolve that question in the criminal law context, which requires us to construe the relevant statute strictly against the State. That requirement ultimately leads us to conclude that Adams's actions did not violate the statute so construed.

Under the version of OCGA § 16–12–1(b)(3) in effect at the time of the actions giving rise to this prosecution,⁵ a person committed the offense of contributing to the deprivation of a minor when he or she "willfully commits an act or acts or willfully fails to act when such act or omission would cause a minor to be found to be a deprived child as such is defined in Code Section 15–11–2 [.]" The version of OCGA § 15–11–2 then in effect provided that a child may be "deprived" in several ways; the State relies on the provision that defined as deprived a child who "[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child's physical, mental, or emotional health or morals[.]" OCGA § 15–11–2(8)(A) (2012).

"Proper parental care or control" is not a term defined in the statute. And at first blush, it might seem as though the General Assembly simply enacted a statute making it a crime to act willfully in a manner that fails to provide "proper care" for a child and left it up to the courts to determine what care is proper and what is not. But our Supreme Court has already resolved a vagueness challenge to this very statute, and has done so by narrowing the statute's scope. See Bagby v. State , 274 Ga. 222, 552 S.E.2d 807 (2001).

To survive a vagueness challenge, it is necessary only that a "challenged statute convey sufficiently definite warning as to the proscribed conduct when measured by common understanding[.]" Id . at 223 (1), 552 S.E.2d 807. The Court observed that, like all criminal statutes, the statute must be strictly construed against the State. Id . at 224 (1), 552 S.E.2d 807. And the Court concluded that doing so rendered OCGA § 16–12–1(b)(3) sufficiently definite: construing it against the State, and "[m]easured by common understanding, the statute prohibits a person from wilfully committing an act or omission that deprives a child of the physical, mental, emotional or moral needs essential to the child's well-being." Id . The Court concluded that this prohibition had been violated when the evidence showed that a mother left her child alone with the mother's boyfriend, who had repeatedly committed violent acts against the child during the preceding months and promised to do so again, and then failed timely to ensure medical attention upon returning and seeing the child with a head injury. Of course, any person of ordinary understanding would...