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MOSBY v. STATE

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Court of Appeals of Georgia.

MOSBY v. The STATE.

No. A12A1703.

Decided: February 04, 2013

Arturo Corso, for Appellant. Daniel J. Porter, Lawrenceville, Marlene Shari Zekser, for Appellee.

The State indicted Michael Mosby in the Superior Court of Gwinnett County on multiple counts of sexual offenses against four of his children. As to all but one count, the State alleged that the offenses occurred during a specified date range, rather than on a certain day.1 Mosby filed a special demurrer, arguing that he expected his defense to include evidence that he did not reside in the family home at the time of several of the alleged offenses and, therefore, that the State should be required “to vastly narrow the alleged date range[s] so that [he] may better defend himself against the allegations” in the indictment. Mosby also filed a motion to dismiss and plea in bar, arguing that, as indicted, several counts are barred by the applicable statutes of limitation. After a hearing, the trial court overruled the special demurrer and denied the motion to dismiss, and Mosby appeals. As explained below, we reverse.

1. Mosby contends that the trial court erred in overruling his special demurrer because the State presented no evidence showing that it could not more specifically identify the dates of the offenses charged in Counts 1 through 14. “Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. However, where the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates.” (Punctuation and footnotes omitted.) State v. Layman, 279 Ga. 340, 340–341, 613 S.E.2d 639 (2005). Further, “if an indictment alleges that a crime occurred between two particular dates, and if evidence presented to the trial court shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred, the indictment is subject to a special demurrer.” Id. at 341, 613 S.E.2d 639. Thus, even when the State cannot identify a single date on which the offense occurred, the range of dates alleged in the indictment should not be unreasonably broad.

As we have emphasized, the exception to the single-date requirement is not applicable where the State fails to present evidence to the trial court to show that the State is unable to identify a single date on which an offense occurred, as, for example, when the victim is a child who may be incapable of adequately articulating exactly when the offense occurred—the State may not rely upon speculation or upon generalities about child victims. Blackmon v. State, 272 Ga.App. 854, 854–855, 614 S.E.2d 118 (2005). As Mosby's counsel cogently argued at the hearing on his special demurrer,

Mr. Mosby is entitled to an evidentiary hearing. [Mr. Mosby] [h]aving filed his special demurrer, it falls to the State to put up evidence that they were unable to narrow the dates any better than they did․ [The prosecutor's arguments] would not be sufficient to constitute evidence before this Court․ [Mr. Mosby's] defense will be prejudiced if we can't have [the] date range[s] narrowed down. So I do call on the prosecutor to introduce evidence [,] subject to scrutiny[,] about why that has not been done.

The State failed to answer this call, however, and relied only on its argument that the exception applies because “a child victim often cannot furnish the precise date of an alleged offense[;] ․ the law says that sometimes these children don't remember exact dates[.]” As in Blackmon v. State, regardless whether the State was in fact unable to pinpoint the particular dates of the alleged crimes in this case,

we cannot speculate about such a matter․ While evidence that the victim is a minor who is incapable of articulating exactly when the offense occurred is a factor the trial court can take into account in determining whether the [S]tate carried its burden of showing that it cannot establish a specific date or time frame in which the offense or recurring offenses occurred, no such evidence appears in the record before us, and it appears the trial court did not require the [S]tate to make any such showing below.

(Punctuation and footnote omitted.) 272 Ga.App. at 855, 614 S.E.2d 118.2 Absent the required evidentiary showing, we must conclude that Counts 1 through 14 are imperfect and subject to the special demurrer. Id. Consequently, the trial court erred in overruling Mosby's special demurrer, and, therefore, Blackmon v. State mandates that we reverse the trial court's ruling.

We note that, if the trial court had overruled Mosby's special demurrer without conducting a hearing at which the State had an opportunity to present evidence on the issue of its ability to identify the dates on which the offenses occurred, we would, as suggested by Judge Dillard in his dissenting opinion, vacate, rather than reverse, the trial court's ruling and remand for the required evidentiary hearing. See Moore v. State, 294 Ga.App. 570, 576–577(2), 669 S.E.2d 498 (2008). In this case, however, the State was afforded an opportunity to present evidence and failed to do so or to request a continuance of the hearing if necessary. Under the circumstances presented here, we conclude that remanding to give the State a second opportunity to shoulder its burden is inappropriate and unauthorized, barring legislative action which is beyond the purview of this Court.3

Of course, our holding does not preclude the State from reindicting Counts 1 through 144 upon the return of this case to the trial court. Blackmon v. State, 272 Ga.App. at 855, 614 S.E.2d 118.5 See Division 2, infra.

2. Mosby contends that, as pled, eight counts of the indictment are barred by the applicable statutes of limitation and, therefore, that the trial court erred in denying his motion to dismiss and plea in bar to this extent. Although we have determined that the trial court erred in overruling Mosby's special demurrer, for the reasons explained in Division 1, supra, we address the issue in light of the State's ability to seek a new indictment upon the return of this case to the trial court.

(a) Mosby challenges Counts 1, 3, 4, and 6, which charged him with committing child molestation against A.M., “a child under the age of sixteen years,” during the 2001 calendar year. The record shows that A.M.'s date of birth is November 8, 1988; consequently, she was under 14 years of age at the time of each offense. OCGA § 17–3–1, as it was in effect at the time, provided that, where the victim was under 14 years of age at the time of the offense, prosecution for these felonies must be within seven years after the commission of the crime.6 As the State contends, however, pursuant to OCGA § 17–3–2.1(a), the statutory period did not begin to run, at the earliest, until November 9, 2004, when A.M. reached 16 years of age.7 Further, Counts 1, 3, 4, and 6, alleged that Mosby committed the offenses against a child under the age of 16, which sufficiently invoked the statute of limitation tolling provision set forth in OCGA § 17–3–2.1. State v. Godfrey, 309 Ga.App. 234, 238(2), 709 S.E.2d 572 (2011). The indictment was filed on July 6, 2011, well before the seven-year statutory period expired on November 9, 2011. Accordingly, the trial court did not err in denying Mosby's plea in bar as to these counts. Id. at 239(2), 709 S.E.2d 572.

(b) Mosby raises a similar challenge to Counts 2 and 5, which charged him with committing aggravated child molestation against A.M., “a child under the age of thirteen years,” during the first ten months of 2001. Because the State did not allege that the victim was under the age of 16 in these counts, the tolling provision of OCGA § 17–3–2.1 was not invoked. See State v. Godfrey, 309 Ga.App. at 239(2), 709 S.E.2d 572 (Alleging that the defendant committed child molestation and aggravated child molestation to a child under the age of 14 did not constitute an allegation that the victim was under the age of 16, as required to invoke the tolling provision of OCGA § 17–3–2.1.). Because the State failed to invoke the tolling provision of OCGA § 17–3–2.1 in Counts 2 and 5, and because the indictment was filed more than seven years after the commission of the crimes, the State failed to prosecute Mosby for these offenses within the time provided by law.

(c) Mosby raises a similar challenge to Count 9, which charged him with committing incest against A.M. during 2001. See OCGA § 16–6–22(a)(1).8 The State did not allege that the victim was under the age of 16 in this count, however, and, therefore, as with Counts 2 and 5, the tolling provision of OCGA § 17–3–2.1 was not invoked. Consequently, the State failed to prosecute Mosby for this offense within the time provided by law.

(d) Mosby contends that prosecution is barred as to Count 10, which alleged that, between December 25 and December 31, 2003, he committed aggravated sexual battery, OCGA § 16–6–22.2, against Br. T. As Mosby contends and the State concedes, the applicable period of limitation is seven years.9 And, as Mosby contends, the offense of aggravated sexual battery is not subject to the tolling provisions of OCGA § 17–3–2.1(a). Consequently, the State failed to prosecute Mosby for this offense within the time provided by law.

Judgment reversed.

I respectfully dissent. The record reflects that both Mosby and the State presented oral argument before the trial court, but Mosby specifically requested an evidentiary hearing on his special demurrer, positing that mere arguments to the court “would not be sufficient to constitute evidence before the Court.” But instead of holding an evidentiary hearing as Mosby requested, the trial court summarily denied his special demurrer. In doing so, the trial court erred; and the majority likewise errs in concluding that the indictment is subject to the special demurrer prior to an evidentiary hearing being held by the trial court.1 Accordingly, I would vacate the trial court's order and remand for an evidentiary hearing on Mosby's special demurrer.2

ELLINGTON, Chief Judge.

PHIPPS, P.J., BARNES, P.J., MILLER, P.J., and McFADDEN, J., concur. DILLARD and McMILLIAN, JJ., dissent.

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