1 Three of the exploitation counts charged Crossen with entic ing the victim to send him im ages of he r engaging i

n s exually

explicit conduct, and the other three counts were related to h is posse ssion of the images. THIRD DIVISION BA RNES, P. J., BOGGS and B RA NCH, JJ. N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ July 11, 2014 

## In the Court of Appeals of Georgia
A14A0008 . THE STATE v. CROSSEN. B ARNES , Presiding Judge. The State appeals from the trial court ’s order deviating from the m andatory minim um sentencerequirem

ents under OCGA § 17-10-6. 2 (b), c ontendi ng that the defendant has the bur

den of proving that

he is eligi

ble for the

deviation. The statute provides tha

t a defendant

convicted of certain sexual of fenses m ust be sentenced to atleast the minim

um ter m of impris onment

applicabl e to the offe nse, but allows the trial court to exerc ise its di scretion to deviate from the m andatory minim um under

cer tai n ci rcu msta nce s. F or t he r eas on s th at f ol lo w, we aff

irm. Stephen Crossen w as indicte d on six counts of sexual e xploitation o f a child, OCGA § 16-12-100 (

b) 1 , on e co unt of s odo my, OCGA § 16-6-2 (a) (1) , six count s of misde mean or

dissemination of p ornography to a minor, OCGA § 16-12-103 ( a), and2

one count of interf erence with custody , OCG A § 16-5-4 5 (b). The charges stem med f rom Crossen’ s involvement in a re lationship w ith a 16-year-old g irl, in w hich th e two exchanged

sexually explicit pi ctures an d text m essages a nd engaged in

consensu al oral sod omy in a public park on one occ asion. Crossen pled gui lty to all charg es and after a ccepting his plea, the trial court grantedhis req uest for a pre-sentence investigation. After the pre-sentence investigati on report was complete, the tr ial court held a sen ten cing hear ing, during which the State

presente d no aggrava

ting facto rs or

victim impac t testimony. Cr ossen presentedseveral charact er witne sses, and also testifie d. At the end of the h earing, the trial cour t found that

OCGA § 17-10-6. 2 require d him to sentenceCrossen to serve

no less tha

n the minimum

statutory sentence on the sexual exploitation of children and sodomy counts, a nd sentence d him to seven y ears to serve five in custody on each of the six sexu al exploita

tion of chi ldr en counts an d on the sodom y count , twelve months to serve on

each of t he six pornog

raphy dissemination coun

ts, and one

month to serve on the interfe rence with cu stody count , all to be se rved concu rrently. Later that day , the tri al court is sued an or der statin g that it app eared to h ave misinterpreted

th e mandatory sentencing statute and set a hearing “ for a reconside ration

of the sen t ence.” At the se cond heari ng, held ap proximately two3

weeks after th e first one , the tri al court in form ed the par ti es that it had determined that it had the di sc retion un der OCG A § 17-10- 6.1 (c) to sentence Crossen to less than the minimum

statutory sentences on all of the charges against him except the sodomy count. After hearing argument, the court resentenced Patterson, reducing his sentence

on the six cha

rges of sexual ex ploitation f rom seven ye ars with five to ser ve in custody to five y ears wi th two to se rve in cust ody. I n its order approving th e deviation, the trial

court expl ained its reasoning an d found as fact that there was no evidence of any of the factors listed in OCGA

§ 17-10-6. 2 (c) (1) (A)-( F) that w ould prohibit it f rom e xercising its discre tion except as to the sodomy

count. Re garding that count, the trial court found that the facts disclosedat the plea hearing established that Crossen had transport ed the vict im to t he park, and t

he fact of t

ransporta tion foreclosed

the court f

rom e xercising

its discretion to sentence a defendant to less than the ma ndatory

minim um under OCGA

§ 17-10-6. 2 (c) (1) (E). I n exercis ing it s discretio n to depart downwar d on the other counts, the court specified that it was relyi ng on evidence

introduced

during the p lea hear

ing, the first

sentencing

hearing, and the prob ation offi ce’s pr e-senten ce investi gation. I t found that4

[t]hedefendant

has no prior conv ictions of a ny kind, the defen dant did not use a dead

ly we apon or

simil ar obje ct during th e com missio n of

the offense, there w as no eviden ce of sim ilar tra nsactions pr

es ented, th e victim was not tou ched during the com missio n of the off

ense, the offensedid not involve the transportation of the victim and the vict im was not ph ysically restraine d during the commission of t he offense. The court fur

ther found that “ the fact of a diver gence not be ing availa

ble in only

one count does not disqu alify

the defen dant from

receivin g it in

other count s where it is available. The alle gations of t he indictm

en t combine offenses that occurred over a period of time.” Finally , the trial court held that, contrary to the State ’s contention, Crossen did not bear

the burden of proving hi s entitlem ent to the deviation. Instead, the court h e ld, “ the statute itself co ntemp lates a f

ailure of proof on the

part of th e State,” and held tha

t placing th e burden of proof on the defendant “would be burden shifting and unconstitutional.” The State appeals, contending that the trial court erre d in devia ting from the manda tory m inimum sentence u nder OCGA § 17-10-6.2 because “no evidence was presentedas to any

of the fa ctors per

mitting devia

tion .” The State fu

rther con tends that the trial court erred

in holding tha

t the State, not the defendant, had the burden

o f es tablishing th e existenc e of the st atutory factors that prohibi t the court from5

deviating from the mandatory minim um. Under the c ircum st ances in th is case, we discern no error. OCGA § 17-10-6. 2 (a) list s ten crim es to be con side red “se xual offenses” under the statute, including the offenses of sodomy and sex ual exploitatio n of children. OCGA § 17-10-6.2 (a) (3), (10). Subsectio n (b) of the statute requires a trial c ourt to sentence a person c onvicted of a “se xual offe nse” to a

split sentence that m

ust include atleast the m inimum

term of im prisonm ent specif

ied in the c ode section

prohibiting the offense and an additional probated sentence of at least a year. T he statute further provides , however, that the trial co urt, in its discretio n, may deviate f

rom t he ma ndato ry mini mum

sentence as set for

th in subsec tion(b) of thi s Code sec tion, or a ny port ion thereof

, provide d that: (A) The def

end ant h as no prior

conviction o f an offense prohibited by Cha

pter 6 of Title 16 [ sexual off

enses] or Part 2 of Artic le 3 of Chapte r 12 of Titl e 16 [obscenity of fenses re lated to m

inors], nor a prior conviction for any [similar] offense under federal law or th e laws of anothe r state . . .; (B) The d efen dan t di d no t us e a de adl y weapon or any obj ect, device, or instrument which when used offensive ly against a pers on would be likely to or actua

lly did result in serious bodily injury during the commission of the offense;6 ( C) The cour

t has not fou

nd evidence

of a relevant si mila

r transact ion; (D) The victim did no t suffer any intentional phy sical har m during the commission of the offense; (E) Th e offense d

id not involve

th e tr ans po rta ti on of t he v ict im; and (F) The victi m wa s not phy sically restrained during th e commission of the offense. OCGA § 17-10-6 .2 (c) (1) (A)-(F). We first note

that “ [p]enal statutes a

re alwa ys cons t rued str ictly against the State and libera

lly in favor of human liberty. ” Gee v. State , 225 Ga. 669, 676 (7) (171 SE2d 291) (1969). Moreover, in so construing a statute, “the cardinal rule is to glean the intent of

the legisla

ture. L anguage in o ne part of the statute

must be construed in the light of the

legisl ative int ent as foun d in the stat ute as a w

hole.” ( Citation a

nd punctuation omitted.) Goldberg v . State , 282 Ga. 542, 544 (651 SE2d 667) (2007). In addition, [in] int erpretin g a statute, we m ust presume that the General Assem bly had full kno wledge of

the exis ting state of the law and e nactedthe statute

with ref

erence to it. W e construe statutes in connectio n and in harmony with the existing law, and as a part of a gen eral an d uniform

system of jurisprudence, and their m eaning and effect is to be det ermi

ned in conne ction, not

only w ith the comm on law7

and the const itution , but also wi th re ference to other sta

tutes and decisions of

the courts

. (Citation s and punct uation o mitted). Chase v. State , 285 Ga. 693, 695-69 6 (2) (681 SE2 d116) (2009) . And in so doing, cr iminal statutes “ should not be l imite d o r extended by applicatio n of subt le and forced interpret ations.” State v. Johnson , 269 Ga. 370, 371 (1) (499 SE2d 56) (1998). In applying these principles, under the statutory scheme set forth in OCGA § 17- 10-6.2, a trial court

is prohibite d from

probating, suspending, staying, defe rring,

or withholding

any of the m andatory

term of impris onment

stated for

any of the specifiedoffenses. Hedden v . State , 288 Ga. 871, 873-74 (708 SE2d 287) (2011) . But, the statute p ermits, at the trial c ourt’s discr etio n , a deviation from the mandatory minim um provid

ed that six factors are found. OCGA § 17-10-6.2 (c) ( 1) (A)-(F). Thus, the possibility of a less stringent sentence is permitted if Crossen had no prior conviction of any of the specified offenses , did

not use a de adly w eapon durin g the offense, there w as no eviden ce of a relevant similar tr ansactio n, the victim

did not generall y physical harm during the crim e; there w as no transportation of t he v ict im; and the victim

was not phy sically

restrained during th e offense . Id. T o that end, in a presentence hearing, the trial court takes into consideration all aspects of the crime,8

including the past criminal record or lack thereof to determ ine a sentence. See generall y Johnson v. State , 126 Ga. App. 757 (191 SE2d 614) (1972) . Thus, in these circum stances, if the trial cour t determ ines that th e require

ments of OCGA § 17-6-6.2 (c) (1) (A)-(F) have bee n satisfie d after t he evidenc e was presented, then it coul d considera do wnw ard dev iat io n fr om th e man dat ory mini mum. OCGA § 17-6-6.2 (c) (1) certainly “ does not require a trial court to procure evidence that is not tende red, and the courtcertainly cannot force a party to put forth evidence.” Watts v. State , 261 Ga. App. 230 ( 3). The

statute pe rmit s the trial

court in co nsiderati on of the evidence presentedand in the exercise of its discretion to downward deviate if the statutory factors a re absent

. Carr v. St

ate , 267 Ga. 547, 5 58 (8) (b) (4 80 SE2d 58 3) (1997)

. The statute, however

is silent in

regard a s to who ca

rries the burden of establishin g the absence of the fact ors that w ould perm it a downw ard depar

ture. This silence crea tes an amb igu ity. See State v. L anglands , 276 Ga. 721, 724 (2) (583 S E2d 18) ( 2003). An d, where t he language

in a crim inal statut e is am

biguous, it m

ust be construed in favor of

the defen da nt. St ate v. M ills , 268 Ga. 873, 875 (49 5 SE2d 1) (1998). Thu s, the trial court did not err in d oing so

. Moreover, the recor

d demo nstrates t

hat the tri al court he ld two pre -sentenc ing hearings and the op tion of d ownward devi ation in OCGA § 17-6-6.2 (c) (1) was an9

issue at both hea

rings. Su bse que ntly, al thou gh fu lly aware of the trial court ’s intention to reconsi der the O CGA § 17- 10-6.2 pro visions at the second sentencing hearing, the State presented absolutely no evidence about th e existenc e of any statutory factors that w ould proh ibit the co urt fr om devi atin g down ward o n Cros sen’s sentence. Therea fter, u

pon consider

ation of evidence adduced f

rom t he plea he aring, the sentencing

hearings, and the pre -sentenc ing report , the tri al court sp ecifically found that the f actors we re absent

except fo r the tra

nsportation

of the vict

im in t he

so do my count. T o that end, the State does not maintain on appeal that Crossen was ineligiblefor a dow

nward de viation on his sentencebecause o ther evidence of the OCGA § 17-10-6 .2 (c) (1) facto rs exists which the tr ial court fa iled to co nsider. Although the State fi led a supple mental brief in which it argued that the trial courterred because each

individual c ount constitu ted a “re levant sim

ilar tra nsaction” to the other sexual offenses, and that under OCGA § 17-10-6.2 (c) (1) (C) the court

was prohibited fro m sen ten cin g Cr os sen to les s th an t he ma nd ato ry min imu m time for each count, we will not consider this new arg ument on appeal. As we ha

ve consistentl

y held, a party cannot broaden his enumer atederrors t

hrough argu

ment or cit ations in a brief. Manley v . State , 287 Ga. App. 358, 360 (4) (65 1 SE2d 453 ) (2007). “ Attem pts in a supplemental brief to expand the

issues bey

ond the scope

of2 The Ge orgia Associat ion of Crim

inal Def ense Law yers argues, in its role as amicus curiae, that this C ourt should consider whether

the trial court cor rectly found that the one instance o f transpor tation in the

sodomy count did not p reclude i t from exercising its discre tion to deviate f rom the m andatory

minim um sen tences as to the other counts. H owever, the State did not enum

erate this issue as error. Thus, as amicus briefs are “lim

ited to issues properly raised by the par ties,” we considered GACDL’s brief only

to the extent it touche d uponthe error enumerated by the State. See Courtof Appeals Rule 26 a nd Fulton Coun ty v. B artenfeld , 257 Ga. 766, 771 (5) (363 SE2d 555) (1988) (appellate court cannot co ns ider issue not raised

by a pa rty to the appeal). 10 the enumeration of errors are impr oper.” ( Punctuati on o mitted.) Campbell v. State , 253 Ga. App. 325, 326 (3) (558 SE2d 857) (2002). 2 Acco rdi ngl y, in these cir

cumst ances, t

he trial c ourt did not

abuse its di scretion in its downw ard depar

ture in sen

tencing Cr

ossen. Judgment a

ffirmed. Boggs and B ranch, JJ ., conc ur .