O.C.G.A. § 16-12-1 (2019)

Annotations

Cross references. Sale or purchase of alcoholic beverages to, by, or for underage persons, § 3-3-23 et seq. Furnishing alcoholic beverages to minor children; gambling with minor children, § Editor’s notes. Ga. L. 1996, p. 273, § 3, not codified by the General Assembly, provides for severability. Ga. L. 2004, p. 57, § 6, not codified by the General Assembly, provides that the amendment by that Act shall apply to all crimes which occur on or after July 1, 2004. Ga. L. 2011, p. 470, § 1/SB 94, not codified by the General Assembly, provides: “This Act shall be known and may be cited as the ‘Runaway Youth Safety Act.’” Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: “This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and

juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions.” Ga. L. 2014, p. 599, § 1-1/HB 60, not codified by the General Assembly, provides: “This Act shall be known and may be cited as the ‘Safe Carry Protection Act.’” Law reviews. For note on the 1994 amendment of this Code section, see 11 Georgia St. U.L. Rev. 117 (1994). For review of 1996 offenses against public health and morals legislation, see 13 Georgia St. U.L. Rev. 116 (1996). For note on 1999 amendment to this Code section, see 16 Georgia St. U.L. Rev. 81 (1999). For article, “Criminal Law,” see 53 Mercer L. Rev. 209 (2001). For article on 2004 amendment of this Code section, see 21 Georgia St. U.L. Rev. 45 (2004). For article on the 2014 amendment of this Code section, see 31 Georgia St. U.L. Rev. 47 (2014).

JUDICIAL DECISIONS Editor’s notes. - Many of the cases noted below were decided prior to the 1994 amendment of subsection (d). Statute is not unconstitutionally vague. - O.C.G.A. § 16-12-1(b)(2), even strictly construed, provided adequate notice to a person of common understanding that leaving a three-year-old child with a violent third party who had previously beaten the child and who was under the influence of methamphetamine and then locking the child in a bathroom instead of promptly seeking medical attention for the multiple skull fractures inflicted on the child by the

third party was prohibited conduct. Bagby v. State, 274 Ga. 222, 552 S.E.2d 807, 2001 Ga. LEXIS 623 (2001). Term “knowingly” required the state to prove that defendant knew the minor was under the age of 17 years. Brown v. State, 233 Ga. App. 195, 504 S.E.2d 35, 1998 Ga. App. LEXIS 928 (1998). Required allegations in accusation. - Accusation under provisions making it a misdemeanor to do any act which the defendant knew or should have known would produce, promote, or contribute to conditions rendering a child delinquent or neglected must allege that the child is

delinquent or neglected. Walker v. State, 104 Ga. App. 595, 122 S.E.2d 486, 1961 Ga. App. LEXIS 746 (1961). To constitute a valid indictment, it is necessary to allege that accused has so acted and affected a delinquent or neglected child or children. Dabney v. State, 143 Ga. App. 655, 239 S.E.2d 698, 1977 Ga. App. LEXIS 2449 (1977). Accusation insufficient as to date of offense. - Accusation that alleged contributing to the delinquency of a minor and electronically furnishing obscene material to a minor within a two and a half month time frame was subject to a demurrer because the state gave no explanation as to why an investigating officer was unable to ascertain the dates of the offenses from the victim’s computer. State v. Meeks, 309 Ga. App. 855, 711 S.E.2d 403, 2011 Ga. App. LEXIS 469 (2011). Proof of delinquency required. - Even though, under O.C.G.A. § 16-12-1(b)(1), the state was not required to show that the minor was formally adjudicated delinquent, it was required to allege and prove that the victims had committed delinquent acts. Schlomer v. State, 247 Ga. App. 257, 543 S.E.2d 472, 2000 Ga. App. LEXIS 1460 (2000). When a child is neglected. - Child may be neglected either when the child is not provided with necessaries or where by reason of parents’ improvidence and neglect the child is placed in unfit surroundings or exposed to unfit, immoral, and depraved influences, not conducive to the child’s health, morals or well-being. Walker v. State, 104 Ga. App. 595, 122 S.E.2d 486, 1961 Ga. App. LEXIS 746 (1961). Evidence held sufficient for conviction. - See Eckman v. State, 201 Ga. App. 879, 413 S.E.2d 221, 1991 Ga. App. LEXIS 1616 (1991); Bazin v. State, 299 Ga. App. 875, 683 S.E.2d 917, 2009 Ga. App. LEXIS 1015 (2009). Evidence that while in defendants’ care a child suffered a fractured arm for which defendants refused to seek medical treatment and were evasive about explaining, although circumstantial, was sufficient to support convictions for child cruelty and

contributing to the deprivation of a minor. Thompson v. State, 262 Ga. App. 17, 585 S.E.2d 125, 2003 Ga. App. LEXIS 815 (2003). Given evidence that the defendant’s two young children were left unattended, resulting in one going outside in near freezing weather without the proper clothing, causing that child’s body temperature to drop two degrees and suffer mild hypothermia, the defendant’s two convictions for contributing to the deprivation of a minor were upheld on appeal. Ellis v. State, 283 Ga. App. 808, 642 S.E.2d 869, 2007 Ga. App. LEXIS 207 (2007). There was sufficient evidence to support the defendant’s conviction of contributing to the delinquency of a minor where there was evidence that the defendant knew that juveniles were drinking alcohol at a party held at the defendant’s house by the defendant’s child. It was not necessary that the defendant personally furnish the alcohol, and the jury was not required to accept the defendant’s story that the defendant denied permission for the party and slept without being aware that the party was going on. Beckom v. State, 286 Ga. App. 38, 648 S.E.2d 656, 2007 Ga. App. LEXIS 671 (2007). Evidence that a minor was in a park with the defendant, that the minor registered positive on an alcosensor, that the minor was observed reaching into a bag containing beer as the minor sat on a park bench, that the defendant’s breath smelled of alcohol, and that the defendant observed the minor drinking beer in the park, was sufficient to allow the conclusion that the defendant had at least connived in the minor’s possession and consumption of alcohol. Boyd v. State, 314 Ga. App. 883, 726 S.E.2d 135, 2012 Ga. App. LEXIS 298 (2012). Evidence, taken together, authorized the jury to find that the defendant was guilty of burglary and contributed to the delinquency of a minor as the victim’s neighbor identified the defendant as the person the neighbor saw standing on an air conditioner unit while beating on the victim’s kitchen window, the point of entry for the burglary was that window and, just minutes after the neighbor saw the defendant at the window, the victim ob-

OFFENSES/HEALTH & MORALS

served the defendant and a child walking away from the victim’s residence carrying an item that was taken during the burglary. Williams v. State, 320 Ga. App. 831, 740 S.E.2d 766, 2013 Ga. App. LEXIS 287 (2013). Evidence was sufficient to convict the defendant of pimping a person under the age of 18, contributing to the delinquency of a minor, and trafficking a person for sexual servitude because the copies of the birth certificate and social security card found in the victim’s purse showed that the victim was under the age of 18; and an employee of the youth residence, from which the victim had recently run away, verified the victim’s identity and that the victim was 16 years old. Mackey v. State, 342 Ga. App. 791, 805 S.E.2d 596, 2017 Ga. App. LEXIS 413 (2017). Evidence held insufficient for conviction. - Evidence was insufficient to support the defendant’s conviction for felony contributing to the dependence of a minor because there was no evidence that the infant victim’s death was a reasonably foreseeable consequence of the defendant’s drug use or drug use in the home by defendant’s boyfriend or others, or that it was reasonably foreseeable that the boyfriend would commit a violent crime that resulted in the victim’s death by blunt force injuries. Bell v. State, 317 Ga. 519, 893 S.E.2d 918, 2023 Ga. LEXIS 232 (2023). Delinquency of a minor is not lesser included offense of child molestation. - After the defendant allegedly had intercourse with a 14-year-old, the trial court did not err in failing to give a lesser included offense instruction regarding delinquency of a minor in violation of O.C.G.A. § 16-12-1(b)(1) in addition to the court’s instructions on child molestation in violation of O.C.G.A. § 16-6-4(a). Delinquency of a minor was not a lesser included offense of child molestation as proof of one offense would not have served to prevent a conviction on the other pursuant to O.C.G.A. § 16-1-6 because the offenses shared no essential elements and were directed to different acts. Slack v. State, 265 Ga. App. 306, 593 S.E.2d 664, 2004 Ga. App. LEXIS 1 (2004). Children left alone for less than an hour. - Evidence that the defendant’s children under the age of five were left

alone for less than an hour while the children were sleeping was insufficient to support a conviction for contributing to the deprivation of a minor because persons of ordinary understanding might not conclude such an action deprived the children of needs essential to their well-being. Adams v. State, 340 Ga. App. 1, 795 S.E.2d 330, 2016 Ga. App. LEXIS 700 (2016). Improper punishment. - In sentencing defendant on conviction of two counts of endangering a child, the court erred in imposing sentences of 12 months on the first count, consecutive to defendant’s 12-month sentence for driving under the influence, and, on the second count, 12 months’ probation consecutive to the sentence on the first count. Guest v. State, 229 Ga. App. 627, 494 S.E.2d 523, 1997 Ga. App. LEXIS 1410 (1997), cert. denied, No. S98C0542, 1998 Ga. LEXIS 394 (Ga. Mar. 6, 1998). Sentence appropriate. - There was no showing that the defendant’s sentences for enticing a minor for indecent purposes, statutory rape, and contributing to the delinquency of a minor were vindictively enhanced in violation of Ga. Unif. Super. Ct. R. 33.6(B) after the defendant was allowed to revoke a guilty plea because, inter alia, the trial judge found that an enhanced sentence was warranted based on material differences between the facts presented regarding the nature of the crimes during the plea hearing and the trial; the concurrent sentences of 15 years to serve for enticing a minor for indecent purposes and statutory rape, plus 12 concurrent months for contributing to the delinquency of a minor were within statutory limits and valid. There was no absolute constitutional bar to imposing a more severe sentence upon re-sentencing. Hawes v. State, 298 Ga. App. 461, 680 S.E.2d 513, 2009 Ga. App. LEXIS 693 (2009), cert. denied, No. S09C1769, 2010 Ga. LEXIS 15 (Ga. Jan. 12, 2010). Defendant failed to demonstrate that the defendant’s sentence of ten years for cruelty to children in the second degree, O.C.G.A. § 16-5-70(c), and contributing to the deprivation of a minor, O.C.G.A. § 16-12-1(b)(3), were unlawful because the trial court found that the defendant’s

defense was based upon lies and asserted in bad faith; the sentences were within the statutory limits for each of the crimes for which the defendant was convicted pursuant to O.C.G.A. §§ 16-5-70(e)(2) and 16-12-1(b). Staib v. State, 309 Ga. App. 785, 711 S.E.2d 362, 2011 Ga. App. LEXIS 450 (2011). Merger with DUI conviction prohibited. - Despite the defendant’s contrary contention, the trial court did not err in failing to merge a DUI conviction with a conviction for endangering a child by DUI, for the purposes of prosecution and sentence, as O.C.G.A. § 40-6-391(l) specifically prohibited merger, and O.C.G.A. § 16-12-1(d) provided independent provisions for punishment. Slayton v. State, 281 Ga. App. 650, 637 S.E.2d 67, 2006 Ga. App. LEXIS 1192 (2006). Deprivation of a minor conviction did not merge with cruelty to children conviction. - Trial court did not err in failing to merge the defendant’s misdemeanor convictions for contributing to the deprivation of a minor, O.C.G.A. § 16-12-1(b)(3), with the defendant’s corresponding felony convictions for cruelty to children in the second degree, O.C.G.A. § 16-5-70(c), pursuant to the “required evidence” test, the offenses did not merge as a matter of law. The offenses of cruelty to children in the second degree and contributing to the deprivation of a minor each have at least one essential element that the other does not: causing the child cruel or excessive physical or mental pain and wilfully failing to provide the child with the proper care necessary for his or her health, respectively. Staib v. State, 309 Ga. App. 785, 711 S.E.2d 362, 2011 Ga. App. LEXIS 450 (2011). Deprivation statute cannot be used as predicate offense for felony murder. - After looking at both the plain language of the statutes, as well as the sequence of their adoption, the felony deprivation statute could not be used as a predicate offense for felony murder as the clear language of O.C.G.A. § 16-12-1(d.1)(1) and (e) specifically criminalizes the death of a minor resulting from an accused’s contribution to the deprivation or delinquency of that

child, whereas felony murder criminalizes general felony conduct resulting in death of another. Williams v. State, 299 Ga. 632, 791 S.E.2d 55, 2016 Ga. LEXIS 575 (2016). Trial court’s denial of the appellant’s demurrer to count one of the indictment was reversed because the plain language of O.C.G.A. § 16-12-1 establishes that the felony deprivation statute cannot be used as a predicate offense for felony murder. Williams v. State, 299 Ga. 632, 791 S.E.2d 55, 2016 Ga. LEXIS 575 (2016). Rule of lenity did not apply to multiple convictions. - In a criminal trial on charges that the defendant allowed the repeated rapes of the defendant’s 11-year-old child, the rule of lenity did not require that the defendant’s felony convictions for being a party to rape and cruelty to children should be subsumed by the misdemeanor conviction for contributing to the deprivation of children because different facts were necessary to prove the offenses; the rape conviction required proof under O.C.G.A. §§ 16-2-20 and 16-6-1(a)(1) that the defendant took affirmative steps to aid the rapist, the cruelty to children conviction required proof under O.C.G.A. § 16-5-70(b) that the defendant caused excessive mental pain to the child, and the conviction for contributing to the deprivation of a minor required proof under former O.C.G.A. § 15-11-2(8)(A) (see now O.C.G.A. § 15-11-107) and O.C.G.A. § 16-12-1(b)(3) that the defendant failed to provide the child with proper care necessary for the child’s health, which the state proved by showing that the defendant failed to seek prenatal care for the child even though the defendant knew that the child was pregnant. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644, 2006 Ga. App. LEXIS 1509 (2006), cert. denied, No. S07C0596, 2007 Ga. LEXIS 278 (Ga. Mar. 26, 2007). Trial court did not err in failing to apply the rule of lenity and sentencing the defendant for the misdemeanor convictions of contributing to the deprivation of a minor, O.C.G.A. § 16-12-1(b)(3), instead of for the felony charges of cruelty to children, O.C.G.A. § 16-5-70(c), because the rule of lenity did not apply since

OFFENSES/HEALTH & MORALS

different facts were required to prove cruelty to children and contributing to the deprivation of a minor; the defendant’s conviction for contributing to the deprivation of a minor required proof that

the defendant failed to provide the children with the proper care necessary for the children’s health. Staib v. State, 309 Ga. App. 785, 711 S.E.2d 362, 2011 Ga. App. LEXIS 450 (2011).

RESEARCH REFERENCES Am. Jur. 2d. 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, §§ 20, 41, 47. C.J.S. 43 C.J.S., Infants, §§ 198, 199. ALR. Acts in connection with marriage of infant below marriageable age as contributing to delinquency, 68 A.L.R.2d 745.

Criminal liability for contributing to delinquency of minor as affected by the fact that minor has not become a delinquent, 18 A.L.R.3d 824. Mens rea or guilty intent as necessary element of offense of contributing to delinquency or dependency of minor, 31 A.L.R.3d 848. Giving, selling, or prescribing dangerous drugs as contributing to the delinquency of a minor, 36 A.L.R.3d 1292.