O.C.G.A. § 17-3-2.1 (2019)

Annotations

Editor’s notes. - Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: ‘‘This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of

offense, of whatever degree or level, pursuant to this Act.’’ Law reviews. - For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For note on 1992 enactment of this Code section, see 9 Ga. St. U.L. Rev. 231 (1992). For note, ‘‘Give It to Me, I’m Worth It: The Need to Amend Georgia’s Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector,’’ see 52 Ga. L. Rev. 267 (2017).

JUDICIAL DECISIONS Tolling statute of limitations for offenses against minors. - O.C.G.A. § 17-3-2.1 evidences the legislature’s intent that statutes of limitation for certain crimes against minors should be tolled by the infancy of the victim until such time as the victim is 16 years of age or until the violation is reported to law enforcement authorities, whichever is earlier. Johnston v. State, 213 Ga. App. 579, 445 S.E.2d 566 (1994). In a case in which the defendant orally sodomized a child victim between 1992 and 1995 and the victim turned 16 during the 1997 trial, the evidence of aggravated child molestation fell within the applicable statute of limitation, O.C.G.A. § 17-3-2.1(a) and (b). Brock v. State, 270 Ga. App. 250, 605 S.E.2d 907 (2004). Trial counsel was ineffective in failing to request a jury instruction on the statute of limitation with regard to the child-cruelty charge because in the indictment the state did not allege that the statute of limitation for child cruelty was tolled based on the victim being under the age of 16; thus, such proof was inadmissible at trial. Slack v. State, 354 Ga. App. 727, 841 S.E.2d 231 (2020).

Seven-year limitations period for child molestation tolled until victim was 16 years of age. - Because O.C.G.A. § 17-3-2.1(a) provides that if a victim of child molestation is under 16 years of age on the date of the offense, then the period within which the prosecution must be commenced under O.C.G.A. § 17-3-1 shall not begin to run until the victim has reached the age of 16, the seven year statute of limitations period did not run until the victim turned 16 yeas of age, and an indictment against the defendant that was returned within that seven-year period was timely. Tompkins v. State, 265 Ga. App. 760, 595 S.E.2d 599 (2004). Seven year statute of limitations. - Because an underage sexual abuse victim did not report molestation by the defendant until December 2001, the seven-year statute of limitations did not even begin to run until that time, pursuant to O.C.G.A. §§ 17-3-1(c) and 17-3-2.1(a); further, the defendant’s own statement that the defendant only knew the victim for two or three years would have been sufficient to show that the molestation took place at some point within the limitations period. Porter

v. State, 270 Ga. App. 860, 608 S.E.2d 315 (2004). Trial court’s denial of the defendant’s motion for a directed verdict of acquittal, pursuant to O.C.G.A. § 17-9-1, on two counts of child molestation in violation of O.C.G.A. § 16-6-4, was proper because the evidence of defendant’s inappropriate sexual abuse of the victim, defendant’s son, sufficiently placed the dates of the charged offenses within the seven-year limitations period of O.C.G.A. §§ 17-3-1(c) and 17-3-2.1(a)(5). Allen v. State, 275 Ga. App. 826, 622 S.E.2d 54 (2005). Trial court did not err in granting the defendant’s plea in bar to dismiss the counts of an indictment charging the defendant with child molestation and aggravated child molestation to a child under the age of 14 because the state failed to indict the defendant within the limitation period, O.C.G.A. § 17-3-1(c); because the state did not allege that the victim was under the age of 16, the tolling provision of O.C.G.A. § 17-3-2.1 was not invoked. State v. Godfrey, 309 Ga. App. 234, 709 S.E.2d 572 (2011). Trial court erred in dismissing the counts of the indictment charging the defendant with aggravated child molestation, child molestation, and statutory rape with a child under the age of 16 because the indictment sufficiently invoked the tolling provision of O.C.G.A. § 17-3-2.1; pursuant to O.C.G.A. § 17-3-1(c), the state had seven years to indict the defendant, and the defendant was indicted within seven years. State v. Godfrey, 309 Ga. App. 234, 709 S.E.2d 572 (2011). Pursuant to O.C.G.A. § 17-3-2.1(a), the statutory period did not begin to run, at the earliest, until November 9, 2004, when one of the victims reached 16 years of age. Further, the counts alleged that the defendant committed the offenses against a child under the age of 16, which sufficiently invoked the statute of limitation tolling provision set forth in § 17-3-2.1. Mosby v. State, 319 Ga. App. 642, 738 S.E.2d 98 (2013). When the defendant was convicted of aggravated child molestation and child molestation, trial counsel was not ineffective for failing to file a motion to dismiss

or plea in bar based on the statute of limitations as the indictment was timely because the indictment was filed within seven years of both the victim’s 16th birthday and the date the victim reported the crimes to police. Leekomon v. State, 351 Ga. App. 836, 832 S.E.2d 437 (2019), cert. denied, No. S20C0283, 2020 Ga. LEXIS 412 (Ga. 2020). Because the state indicted the defendant within seven years of both the victim’s 16th birthday and the victim’s outcry to police, the indictment was timely; thus, trial counsel was not ineffective for failing to object to the trial court’s inaccurate jury charge regarding the statute of limitation, which failed to tell the jury that the victim’s 16th birthday was a potentially relevant date for statute of limitation purposes because there was no reasonable probability that the outcome of the trial would have differed. Leekomon v. State, 351 Ga. App. 836, 832 S.E.2d 437 (2019), cert. denied, No. S20C0283, 2020 Ga. LEXIS 412 (Ga. 2020). Indictment filed within 15 year statute of limitations. - With regard to a defendant’s conviction for forcible rape of the defendant’s child during the time the child was 13 through 15 years of age, the trial court correctly concluded that the state had 15 years from the victim’s 16th birthday on January 12, 1995, or until January 12, 2010, to prosecute the case; therefore, no ex post facto violation occurred since the indictment was filed on January 8, 2008. Duke v. State, 298 Ga. App. 719, 681 S.E.2d 174 (2009), cert. denied, No. S09C1866, 2010 Ga. LEXIS 31 (Ga. 2010). With regard to a defendant’s conviction for rape of a minor relative, the trial court did not err by denying the defendant’s motion for a new trial on the ground that the applicable statute of limitations ran on the rape offenses before the defendant was charged because in applying the 1996 amendment to O.C.G.A. § 17-3-1 and the tolling provisions of O.C.G.A. § 17-3-2.1, the limitation period for the defendant’s crime ran 15 years from December 13, 1995, when the crimes were first reported to authorities. Thus, because the state had until December 13, 2010 to indict the defendant, the January 7, 2008, indict-

ment was timely and no ex post facto violation arose because the original seven-year limitation period had not expired at the time. Flournoy v. State, 299 Ga. App. 377, 682 S.E.2d 632 (2009). Allegation of molestation of a child under 16 sufficient to invoke tolling. - Indictment alleging the molestation of a child under the age of 16 sufficiently invoked the statute of limitation tolling provision set forth in O.C.G.A. § 17-3-2.1. Lyde v. State, 311 Ga. App. 512, 716 S.E.2d 572 (2011). State had no actual knowledge of criminal wrongdoing. - Superior court did not err in failing to grant the defen-

dant’s plea in bar, motion to dismiss, and general demurrer to prohibit prosecution of the non-murder counts in the indictment as barred by the applicable statutes of limitation because the record did not support a finding that the state had actual knowledge that there was criminal wrongdoing resulting in the fatality, much less that the defendant would be charged as the perpetrator of the victim’s death, until the superseding medical examiner’s report. Higgenbottom v. State, 290 Ga. 198, 719 S.E.2d 482 (2011). Cited in State v. Outen, 296 Ga. 40, 764 S.E.2d 848 (2014).