CHALIFOUX v. STATE (2010)

Following a jury trial, Louis Chalifoux was convicted of two counts of child molestation. The trial court sentenced Chalifoux to 15 years to serve on the first count, and 15 years on the second count, 5 years to serve and 10 years on probation. The sentences were ordered to run consecutively. Chalifoux argues on appeal that his convictions should have merged, thus rendering his sentence void. We disagree and affirm.

A person commits the crime of child molestation when he “[d]oes 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.” OCGA § 16-6-4(a)(1). Count 1 of the indictment alleged that Chalifoux molested the child victim “by touching said child's genitals with his fingers.” Count 2 of the indictment alleged that Chalifoux molested the child victim “by exposing his sex organ to said child.”

Under Georgia law, certain convictions merge and multiple punishment may be precluded when the same conduct establishes the commission of more than one crime. See OCGA § 16-1-7(a); Drinkard v. Walker, 281 Ga. 211, 212-213 (636 S.E.2d 530) (2006). But, the rule prohibiting multiple convictions does not apply unless the same conduct of the accused establishes the commission of multiple crimes. See Waits v. State, 282 Ga. 1, 4(2) (644 S.E.2d 127) (2007); Drinkard, 281 Ga. at 212-213; Goss v. State, 289 Ga.App. 734, 738-739(3)(b) (658 S.E.2d 168) (2008). Here, Chalifoux's conviction on Count 1 was based upon his touching of the victim's genitals, whereas his conviction on Count 2 was based upon the exposure of his sex organ to the victim. Because Chalifoux's separate convictions were not premised upon the same conduct, no merger was required. See Goss, 289 Ga.App. at 738-739(3)(b); Parker v. State, 283 Ga.App. 714, 722(5) (642 S.E.2d 111) (2007); Lunsford v. State, 260 Ga.App. 818, 820-821(1) (581 S.E.2d 638) (2003).

Judgment affirmed.

BERNES, Judge.

SMITH, P.J., and PHIPPS, J., concur.