CopyCited 49 times | Published | Supreme Court of Georgia | Feb 7, 2011 | 288 Ga. 695, 2011 Fulton County D. Rep. 208
..., because of his age, he could not be found criminally responsible. "A person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime." OCGA §
16-3-1....
...State,
100 Ga. 63(1),
25 S.E. 845 (1896). Such a child was "conclusively presumed not to be possessed of sufficient capacity to commit crime. [Cit.]" Curry v. State,
87 Ga. App. 451, 452(1),
74 S.E.2d 249 (1953). However, with the enactment of OCGA §
16-3-1 in 1968, the General Assembly "eliminate[d] the conclusive presumption of incapacity to commit crime below the age of 10 years ... and lower[ed] the rebuttable presumption of capacity to commit crime from 14 years to 13 years." Committee Notes to § 26-701 of the 1968 Criminal Code. OCGA §
16-3-1 "does not provide that a person under 13 years of age is incapable of performing an act which is designated a crime under the laws of Georgia...." (Emphasis in original.) K.M.S....
...cution of persons under 13 years old. Compare Roper v. Simmons,
543 U.S. 551,
125 S.Ct. 1183,
161 L.Ed.2d 1 (2005) (relied upon by the special concurrence, but providing a constitutional and categorical proscription on the execution of minors). OCGA §
16-3-1 should not be confused with OCGA §
51-11-6, which this Court has construed to provide "immunity" from a tort action. Barrett v. Carter,
248 Ga. 389(1),
283 S.E.2d 609 (1981). There is no authority that OCGA §
16-3-1 provides immunity from criminal prosecution....
...uke v. State,
222 Ga.App. 203, 205(1)(b),
474 S.E.2d 49 (1996), overruled on other grounds, Brewer v. State,
271 Ga. 605, 607,
523 S.E.2d 18 (1999). See also K.M.S. v. State of Ga., supra (taking this language from the Committee Notes). Indeed, OCGA §
16-3-1 sets forth an affirmative defense, because such a defense admits the doing of the act charged, but seeks to justify, excuse, or mitigate it....
...Thus, contrary to the special concurrence, even if pre-trial documents which were never admitted into evidence refer to Adams' date of birth, some evidence of his age at the time of the crimes nevertheless had to be presented at the trial both to raise the issue in OCGA §
16-3-1 and to supply proof regarding that affirmative defense....
...I write specially because I disagree with the majority's holding in Division 1 that accuseds who were under the age of 13 when their alleged crimes were committed must raise their age as an "affirmative defense" in order to obtain the protection accorded such children by OCGA §
16-3-1....
...ge has determined that no child under the age of 13 who commits a criminal offense may be accused of, i.e., "considered," or found guilty of committing that crime. Once the date of birth is established so as to place a child within the ambit of OCGA §
16-3-1, allowing that child to "waive" that legal bar would utterly thwart the Legislature's purpose of protecting such a child from ever being considered or found guilty of a crime. OCGA §
16-3-1 by its plain language establishes that children who commit criminal offenses at the time they are under the age of 13 are categorically ineligible to be prosecuted for or convicted of those offenses....
...1183,
161 L.Ed.2d 1 (2005), which categorically prohibits the execution of an accused who was under the age of 18 when he committed a capital offense. I would hold that a child under the age of 13 who commits a criminal offense is no more able to "waive" the legal bar to prosecution set forth in OCGA §
16-3-1 than a defendant who commits a capital offense when under the age of 18 can "waive" the constitutional proscription against the execution of a death sentence. However, under the majority's rationale concluding that the categorical prohibition in OCGA §
16-3-1 is nothing more than an "affirmative defense," it follows that a waiver by a child who does not raise the effect of his or her age on a criminal prosecution under OCGA §
16-3-1 or, similarly, its effect on the imposition of a death sentence under Roper, would authorize the State to prosecute and convict a child of crimes committed while under 13 years of age and to execute a child found guilty of a capital felony committed when under 18 years of age. This result is unwarranted. Accordingly, I cannot agree with the majority's holding because it deprives every child in this State of the protection from prosecution and conviction that the Legislature in its wisdom accorded such children in OCGA §
16-3-1 [1] should that child fail or choose not *367 to raise his age as a defense, even in situations where, like here, the State knows that the child's age may place him within the law's protection....
...ant was legally barred from being considered or found guilty of the charged crimes, i.e., before appellant attained the age of 13 on August 4, 2005. I concur in the majority's holding not because it is correct regarding the legal application of OCGA §
16-3-1 to this case but because my review of the evidence adduced at trial establishes that there is no possibility the jury convicted appellant of the charged offenses based upon any acts committed when appellant was under the age of 13....
...the indictment should be drafted carefully to avoid any possibility of the jury considering or finding the accused guilty before he or she has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime. OCGA §
16-3-1....
CopyCited 45 times | Published | Supreme Court of Georgia | Oct 7, 2019
...es the issue invoking the
alleged defense, the defendant must present evidence thereon to
raise the issue.” This provision defines “affirmative defense” only in
terms of the defendant’s burden of production.3 As we have
2 See OCGA §
16-3-1 et seq....
...uld be treated
merely as evidence tending to disprove one of the essential factors in the case
of the prosecution, that is, presence of the defendant at the time and place of
the alleged crime.” (citation and punctuation omitted)).
8 OCGA §§
16-3-1 (accused person younger than 13 years old at the time
of the crime shall not be considered or found guilty);
16-3-2 (accused person
who lacked the mental capacity to distinguish between right and wrong in
relation to the prohibited act sha...
...because of involuntary intoxication, did
not have sufficient mental capacity to distinguish between right and wrong in
relation to the prohibited act shall not be found guilty). As we have explained,
the modern iteration of the infancy defense, OCGA §
16-3-1, does not actually
provide that any person is “incapable of performing an act which is designated
8
where the circumstances are deemed to justify or excuse the
commission of the prohibited act.9...
CopyCited 27 times | Published | Supreme Court of Georgia | Jun 21, 2021 | 312 Ga. 174
...did not satisfy the
requirements for admission pursuant to Rule 414. Specifically, he
argues that, because he was between the ages of 11 and 13 when the
alleged prior offenses occurred, either he lacked the capacity to
commit a crime under OCGA §
16-3-1,3 or the State was required to
prove by a preponderance of the evidence that he had the capacity
to form the criminal intent necessary to commit the prior offenses,
but the State failed to make that showing....
...is not at issue in this appeal, we are reviewing only that evidence pertinent to
our consideration of whether the trial court abused its discretion in admitting
the prior offenses of child molestation pursuant to OCGA §§
24-4-414 and 24-
4-403.
3 OCGA §
16-3-1 provides: “A person shall not be considered or found
guilty of a crime unless he has attained the age of 13 years at the time of the
act, omission, or negligence constituting the crime.”
4
pretri...
...such that it
was substantially outweighed by the danger of unfair prejudice.
Counsel did not argue, however, that proof of Wilson’s legal capacity
was required for admission under Rule 414, nor did he seek a ruling
on the applicability of OCGA §
16-3-1 or the common-law defense of
infancy.
Following the pretrial hearing, the trial court overruled
Wilson’s objection to the admission of the evidence, and entered a
written order ruling that the evidence was admissible under Rules...
... the final charge, the trial court instructed the jury on the limited
evidentiary purposes for which the jury could consider the prior
offenses of child molestation. Wilson did not object to these
instructions, nor did he request a jury instruction concerning the
application of OCGA §
16-3-1 or the common-law infancy defense to
the prior offenses of child molestation.
(b) The evidence of Wilson’s prior offenses of child molestation
presented at trial....
...capable of forming the criminal intent required to commit an
“offense of child molestation” because he was under the age of 13,
which he asserts is the age of criminal responsibility in Georgia,
when the prior acts of molestation allegedly occurred. See OCGA §
16-3-1....
...As explained below, given current law
supporting the trial court’s ruling, we cannot say that the ruling
amounted to “clear and obvious error beyond reasonable dispute.”
(Citation and punctuation omitted.) Westbrook v. State,
308 Ga. 92,
§
16-3-1 or the common-law infancy defense played in the admissibility
analysis under Rule 414.
10
101 (5) (a) (839 SE2d 620) (2020)....
...commission of another offense of sexual assault shall be admissible and may
be considered for its bearing on any matter to which it is relevant.”
12
corollary to Rule 414] is one of law, reviewed de novo.”).9
Wilson contends that OCGA §
16-3-1 provides that a person
under the age of 13 categorically lacks the capacity to commit a
crime....
...13
Wilson was 13 years old or older when the prior offenses occurred,
this argument fails. To the extent that Wilson was under the age of
13 when the prior acts occurred, this argument also fails because
this Court has held that “OCGA §
16-3-1 does not provide that a
person under 13 years of age is incapable of performing an act which
is designated a crime under the laws of Georgia[.]” (Citation,
punctuation and emphasis omitted.) Adams v. State,
288 Ga. 695,
696 (1) (707 SE2d 359) (2011).
Although OCGA §
16-3-1 provides that “[a] person shall not be
considered or found guilty of a crime unless he has attained the age
of 13 years at the time of the act, omission, or negligence
constituting the crime[,]” (emphasis added), in Adams, a majority...
...s]
1968 Criminal Code,” explained that “the General Assembly
eliminated the conclusive presumption of incapacity to commit
crime below the age of 10 years and lowered the rebuttable
11 Code Ann. § 26-701 was the predecessor to OCGA §
16-3-1 and was
enacted in 1968....
...(Punctuation omitted.) Adams,
288 Ga. at 696 (1). Further, citing K.
M. S. v. State of Ga.,
129 Ga. App. 683, 685 (200 SE2d 916) (1973),
and other Court of Appeals cases that also relied on the Committee
Notes, the majority asserted that the purpose of OCGA §
16-3-1 was
to provide “a defense for [children under the age of 13] because of
the social desirability of protecting those no more than 12 years of
age from the consequences of criminal guilt.” (Citation and
punctuation omitted.) Adams,
288 Ga. at 697 (1). The majority
concluded that OCGA §
16-3-1 does not provide that a child under
the age of 13 is immune from prosecution or conclusively lacks the
capacity to perform an act designated a crime under the laws of
Georgia....
...evidence raises the issue invoking the alleged defense, the defendant
must present evidence thereon to raise the issue.’ OCGA §
16-1-3
15
(1).”).12
Some of us doubt that Adams was correctly decided, given the
plain text of OCGA §
16-3-1....
...error, and plain error cannot be based on an extension of existing
precedent, much less on the overruling of existing precedent. See
Dunbar,
309 Ga. at 258 (3). And under Adams’ interpretation of
12 In Adams, this Court concluded that “OCGA §
16-3-1 sets forth an
affirmative defense, because such a defense admits the doing of the act
charged, but seeks to justify, excuse, or mitigate it.” (Citation omitted.)
288 Ga.
at 697 (1)....
...so for the limited purpose of raising the specific affirmative defense
at issue.
(Citations omitted.) McClure v. State,
306 Ga. 856, 864 (1) (834 SE2d 96)
(2019).
13 Then-Chief Justice Hunstein, who was joined by now-Chief Justice
Melton, observed: “OCGA §
16-3-1 by its plain language establishes that
children who commit criminal offenses at the time they are under the age of 13
are categorically ineligible to be prosecuted for or convicted of those offenses.”
Adams,
288 Ga. at 703 (Hunstein, C. J., concurring specially).
16
OCGA §
16-3-1, the trial court did not commit an obvious error by
admitting the evidence of Wilson’s prior offenses of child
molestation.
Adams did not address the meaning of “capacity to commit a
crime” in the context of OCGA §
16-3-1, or explain how a trial court
is to determine whether the evidence is sufficient to show that a
defendant had the capacity to commit a crime in any given case.
Under Georgia’s common-law infancy defense,14 however, a
defendant under t...
...Depending on the circumstances of
the case, the defendant’s age can act to diminish the probative
26
Because the evidence that Wilson knew right from wrong at
the time of the prior acts was sufficient to rebut the presumption of
his incapacity to commit a crime under OCGA §
16-3-1 and Adams,
the trial court was authorized to conclude that Wilson’s prior acts of
molestation constituted crimes and, therefore, met this requirement
of Rule 414....
