Owens v. State

353 Ga.App. 848

840 S.E.2d 70

OWENS

v.The STATE.

A19A2208

Court of Appeals of Georgia.

February 25, 2020

Roger L. Curry, for Appellant.

Joyette Marie Holmes, Amelia Greeson Pray, Marietta, Courtney Leigh Mays, John Stuart Melvin, for Appellee.

Markle, Judge.

Following a jury trial, Robert Willis Owens, Jr., was convicted of child molestation; criminal attempt to commit felony child molestation; three counts of enticing a child for indecent purposes; and four counts of interfering with custody of a minor.¹ He was sentenced as a recidivist under OCGA § 17-10-7 (a) and (c) to a total of thirty years' imprisonment. He now appeals from the denial of his motion for new trial, arguing that the trial court erred in denying his motion for directed verdict as to interference with custody of a minor, and by sentencing him as a recidivist. After a thorough review of the record, we affirm the conviction for one of the interference with custody counts, but reverse as to the other three counts, vacate the sentences imposed for interfering with custody of a minor, child molestation, and enticing a child for indecent purposes, and remand the case for resentencing.

Viewing the evidence in the light most favorable to the jury's verdict, Jackson v. Virginia , 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the record shows that, in the fall of 2014, M. P. was a 15-year-old special education student at Osborne High School. She lived with her grandmother, who was also her guardian. Owens was the father of M. P.'s half-brother.

On October 15, Owens picked M. P. up from school and took her to his house, where she spent the night before Owens drove her back to school the next day. M. P.'s grandmother never gave Owens permission to take M. P. from school or for M. P. to spend the night at his home. While M. P. was with Owens, he performed oral sex on her and the two watched pornography. Owens gave M. P. money and clothes, along with a key to his house and a cell phone to enable him to communicate with her.

On October 30, M. P. and two friends, S. B. and M. I., left school at lunch time, and Owens picked them up down the street from the school. They went to Owens's house and out to lunch before returning to school that same afternoon. Neither M. P.'s grandmother nor S. B.'s mother gave permission for the girls to leave school with Owens.

Based on these incidents, police obtained an arrest warrant for Owens, and he was arrested in mid-November. He was released on bond, with the condition that he have no contact with the juvenile victims.

On November 21, after Owens was released on bond, police received a call that M. P. had not gone to school that morning. They went to Owens's home to investigate. When asked if M. P. was there, Owens denied it, acknowledging that he was not to have any contact with her, but the police ultimately found M. P. hiding in Owens's attic.

At the close of the State's case, Owens moved for a directed verdict on all counts. As is relevant to this appeal, he argued that the interference with custody of a minor counts could not stand because the girls were in school at the time and not in their parents' custody. In support, he cited Thompson v. State , 245 Ga. App. 396, 397 (1), 537 S.E.2d 807 (2000), in which this Court reversed a conviction for interference with custody of a minor where the defendant picked up the victim while she was skipping school. The State noted that, as to one count of interference with custody of a minor, M. P. spent the night at Owens's home, but it conceded that Thompson could apply to the other three counts. The trial court denied the motion for directed verdict, finding that Thompson did not apply because parents have custody of their children at all times.

Following his convictions, Owens filed a motion seeking to avoid recidivist sentencing because the prior convictions on which the State relied were too remote in time and did not involve sexual offenses.² At sentencing, the trial court reviewed Owens's prior convictions, which included a 1983 guilty plea to burglary, a 1987 guilty plea to aggravated assault, and a 1992 guilty plea to forgery, and found that Owens qualified as a recidivist under OCGA § 17-10-7 (a) and (c). The trial court sentenced Owens to 30 years to serve.³ In doing so, the trial court specifically noted that Owens posed a danger to the community and had abused a vulnerable victim.

Owens moved for a new trial, arguing, as is relevant to this appeal, that he was entitled to a directed verdict on one count of interference with the custody of a minor, and that sentencing him as a recidivist was disproportionate and violated the 8th Amendment prohibition on cruel and unusual punishment. The trial court denied the motion for new trial, and Owens now appeals.

1. In his first enumeration of error, Owens argues that the trial court erred in denying his motion for a directed verdict on the interference with custody of a minor counts because the children were not in the custody of their legal guardians when he picked them up during school. We agree as to three of the four counts.

Statutory interpretation is a question of law, which we review de novo, giving no deference to the trial court's ruling. State v. Hammonds , 325 Ga. App. 815, 755 S.E.2d 214 (2014). In interpreting the statute at issue,

we are mindful of the applicable principles of statutory construction and look diligently for the intention of the General Assembly. In so doing, the ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. Criminal statutes are construed strictly against the State, they must be read according to the natural and obvious import of their language, and their operation should not be limited or extended by application of subtle and forced interpretations. Also, if a criminal statute is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.

(Citations and punctuation omitted.) State v. Rich , 348 Ga. App. 467, 471, 823 S.E.2d 563 (2019).

Under OCGA § 16-5-45 (b) (1) (A), "[a] person commits the offense of interference with custody when without lawful authority to do so, the person ... [k]nowingly or recklessly takes or entices any child ... away from the individual who has lawful custody of such child[.]" (emphasis supplied). As defined by statute, "lawful custody" includes "that custody inherent in the natural parents, ... or that custody awarded to a parent, guardian, or other person by a court of competent jurisdiction." OCGA § 16-5-45 (a) (3).

Under the plain language of the statute, the defendant must entice the child away from an individual having custody. OCGA § 16-5-45 (b) (1) (A). Nothing in the statutory language contemplates the removal of a child from a school during school hours.

In Thompson , we explained,

[a]t the time [the child] went with [the defendant], she was not, and indeed was not supposed to be in her mother's custody. And there is no evidence that the mother desired to exercise custody over [the child] at the time but, because of [defendant's] actions, was unable to do so.

Thompson , 245 Ga. App. at 397 (1), 537 S.E.2d 807.

Notably, Thompson was decided in 2000. Since then, the legislature has not amended the statute to clarify that removing a child from school during school hours constitutes interference with custody. The legislature's lack of action supports adhering to the Thompson rationale in the instant case. See Schlomer v. State , 247 Ga. App. 257, 259 (1), 543 S.E.2d 472 (2000) ("the General Assembly was aware of the decisions ... but did not amend the statute to alter those holdings."); see also Williams v. State , 299 Ga. 632, 634, 791 S.E.2d 55 (2016) ("[T]he legislature is presumed to know the condition of the law and to enact statutes with reference to it.") (citation omitted).

The State attempts to distinguish Thompson on the ground that the child in that case was already skipping school when the defendant picked her up. But this is a distinction without a difference here. The issue is not whether the defendant enticed the children away from school or whether they left school of their own volition because the school is not a lawful custodian under the terms of OCGA § 16-5-45 (b) (1) (A). See Thompson , 245 Ga. App. at 397 (1), 537 S.E.2d 807.

This interpretation of the statutory language is consistent with the plain language of the statute and with the use of "legal custodian" elsewhere in the Georgia Code. See OCGA § 15-11-2 (42) (A) (defining "legal custodian" as "a person to whom legal custody of a child has been given by order of a court[.]" (emphasis supplied)).

Applying this reasoning to the charges against Owens, we conclude that only one of the counts of interference with custody of a minor established that Owens interfered with M. P.'s grandmother exercising her right to lawful custody. Specifically, with respect to the October 15 incident, Owens kept M. P. at his home overnight without the grandmother's permission.

As to the other three counts, it is undisputed that, on October 30, M. P. and S. B. left school in the middle of the day, the defendant picked them up, and the defendant brought them back before the school day ended. It is also undisputed that, on November 21, M. P. was at Owens's home when she was supposed to be in school. As neither M. P.'s grandmother nor S. B.'s mother would have had custody of the girls at the time they were with Owens, the trial court should have granted the motion for directed verdict as to these counts. Therefore, the convictions for interference with custody of a minor on these counts must be reversed, and the case remanded for resentencing without those three convictions.

2. In two related enumerations, Owens contends that all of the sentences imposed violate the 8th Amendment...