Algren v. the State

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

November 10, 2014

In the Court of Appeals of Georgia
A14A1098. ALGREN v. THE STATE.

DILLARD, Judge.

Todd Algren was charged in one indictment with one count of statutory rape

and was charged in a second indictment, pertaining to a separate victim, with two

counts of child molestation. Following a joinder of the indictments and a consolidated

trial, the jury found him guilty on the statutory-rape charge and not guilty on the

child-molestation charges. Algren appeals his conviction and the denial of his motion

for new trial, arguing that the trial court erred in joining the two indictments for trial,

failing to charge the jury as to similar-transaction evidence, improperly charging the

jury that a child under the age of 16 years cannot consent to sexual intercourse, and

sentencing him for felony statutory rape. For the reasons set forth infra, we affirm

Algren’s conviction.
 Viewed in the light most favorable to the jury’s verdict,1 the record shows that

S. H. and her older brother had lived with their aunt and uncle since 2005. In June

2008, S. H.’s aunt and uncle, who were both avid scuba divers, planned a diving

vacation to the Florida Keys. Consequently, they registered then 14-year-old S. H.

and her 16-year-old brother for scuba diving lessons with Algren, who was a certified

diving instructor and operated a local dive shop. On the morning of June 29, having

completed most of their certification requirements over the course of the previous

week, S. H. and her brother met Algren at a coffee shop and then went to a nearby

swimming pool for some additional training.

Some time around noon, S. H., her brother, and Algren returned to the dive

shop to unload their gear and other equipment, and after doing so, S. H.’s brother

offered to go pick up some fast-food for lunch. A few minutes after her brother left

the shop, S. H. and Algren, who had been flirting with each other for a couple of days

via text messages and phone calls, began kissing. They then went to a room at the

back of the dive shop, at which point Algren removed S. H.’s shorts and her bathing

suit and had sexual intercourse with her. Subsequently, S. H. and Algren put their

1
See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

2
clothes back on, and returned to the front part of the dive shop just as S. H.’s brother

returned from picking up their lunch.

A few days thereafter, Algren called S. H. at her home to discuss scheduling

a time for her to fulfill one of the swimming requirements that she had yet to meet.

And during this conversation, S. H. and Algren continued flirting and discussed their

sexual liaison. Algren also asked S. H. if she wanted to have sex again and inquired

as to whether there was any chance she could be pregnant, given the fact that they did

not use protection during their first encounter. But while S. H. and Algren were

talking, S. H.’s uncle, who was suspicious that S. H. was dating a former classmate

despite being forbidden to do so, quietly picked up another phone in the house, heard

nearly the entire conversation, and realized that S. H. was speaking with Algren.

Not long after S. H. and Algren ended their phone call, S. H.’s aunt and uncle

confronted her regarding the conversation that her uncle overheard. Initially, S. H.

denied that anything inappropriate occurred, but she eventually admitted that she and

Algren had sexual intercourse. That same day, S. H.’s aunt and uncle reported the

incident to local law enforcement, who then scheduled a forensic interview for S. H.

and began an investigation into S. H.’s allegation against Algren.

3
 While the investigation of S. H.’s statutory-rape allegation was pending,

Algren was living with his girlfriend and her two young children. And on April 29,

2010, approximately a year and a half after S. H.’s allegation, K. R., the nine-year-old

daughter of Algren’s girlfriend, informed a counselor at her elementary school that

one night, during the summer of 2009, Algren came into her bedroom and touched

her breasts and privates. The counselor contacted K. R.’s mother and reported the

child’s outcry to DFCS and law enforcement, which then began a second

investigation of Algren.

Subsequently, Algren was charged, via indictment, with one count of statutory

rape, alleging that he engaged in sexual intercourse with S. H. And in a second

indictment, he was charged with two counts of child molestation, alleging that he

touched K. R.’s breasts and privates. Prior to trial, the State moved to join the two

indictments and try all three charges simultaneously. Algren opposed joinder, but

following a hearing on the issue, the trial court granted the State’s motion and joined

the indictments for trial.

The case was then tried and concluded with the jury finding Algren guilty on

the statutory-rape charge but not guilty on the two child-molestation charges.

Following a sentencing hearing, the trial court imposed a sentence of 20 years upon

4
Algren with ten years to serve in confinement. Subsequently, Algren obtained new

counsel and filed a motion for new trial, which the trial court denied. This appeal

follows.

1. Algren first contends that the trial court erred in joining the separate

indictments for trial in the same proceeding. We disagree.

The Supreme Court of Georgia has held that if charges against a defendant are

“joined solely because they are of the same or similar character, a defendant has an

absolute right to sever.”2 This is so because of the “great risk of prejudice from a joint

disposition of unrelated charges.”3 However, severance is not required where “the

similarity of the offenses is coupled with evidence of a pattern which shows a

common motive, plan, scheme, or bent of mind.”4 More precisely, offenses have not

been joined solely because they are “of the same or similar character when the

2
Stewart v. State, 277 Ga. 138, 139 (587 SE2d 602) (2003) (emphasis
supplied); accord Dingler v. State, 233 Ga. 462, 463-64 (211 SE2d 752) (1975).
3
Stewart, 277 Ga. at 138 (punctuation omitted).
4
Heck v. State, 313 Ga. App. 571, 574 (1) (722 SE2d 166) (2012) (punctuation
omitted); accord Boatright v. State, 308 Ga. App. 266, 273 (707 SE2d 158) (2011).

5
evidence of one offense can be admitted as similar transaction evidence during the

trial of the other offense”;5 and “severance is not mandatory in such a case.”6

But this does not end a trial court’s inquiry because, “while the fact that

evidence of one offense would be admissible in a trial of another offense is a relevant

consideration in determining whether to sever, a trial court must still determine if

severance of the offenses would promote a fair and intelligent determination of guilt

or innocence as to each offense.”7 In doing so, the court should consider whether, “in

view of the number of offenses charged and the complexity of the evidence to be

offered, the trier of fact will be able to distinguish the evidence and apply the law

intelligently as to each offense.”8 Finally, we review a trial court’s decision in this

regard for an abuse of discretion.9

5
Heck v. State, 313 Ga. App. at 574 (1); see Stewart, 277 Ga. at 139-40.
6
Heck, 313 Ga. App. at 574 (1).
7
Id. (punctuation omitted); accord Heard v. State, 287 Ga. 554, 559 (4) (697
SE2d 811) (2010).
8
Heck, 313 Ga. App. at 574 (1) (punctuation omitted).
9
Smith v. State, 249 Ga. App. 39, 40 (1) (547 SE2d 598) (2001) (“We review
a trial court’s denial of a motion to sever the trial of separate charges for an abuse of
discretion.”).

6
 In the case sub judice, Algren’s trial only involved one charge of statutory rape,

which pertained to S. H.’s allegations, and two charges of child molestation, which

pertained to K. R.’s allegations. And neither the facts surrounding the offenses, nor

the evidence presented to prove such facts, was complicated.10 Consequently, Algren

could not show that there was any danger that the jury would be confused or unable

to distinguish the evidence and apply the law as to each offense.11 Indeed, the verdict

itself, including Algren’s acquittal for the two child-molestation charges, shows that

the jury fully understood the law and evidence.12

Furthermore, all of the indicted offenses involved the same type of conduct,

i.e., inappropriate sexual conduct with young girls over whom Algren wielded some

level of authority, and they occurred within nearly one year of each other. Thus, even

if the trial court had not joined the indictments, the allegations of child molestation

would have been admissible in Algren’s statutory-rape trial as similar-transaction

10
See Heck, 313 Ga. App. at 575.
11
See id. (holding that the trial court was not required to sever charges against
defendant given that the facts and evidence pertaining to the charges were not
confusing for the jury).
12
See Heard, 287 Ga. at 559 (4) (finding that verdict in which defendant was
acquitted of some of the charges against him demonstrated that the jury understood
the law and evidence, and, therefore, severance of the charges was not warranted).

7
evidence.13 And as noted supra, when the evidence of one offense can be admitted as

similar-transaction evidence during the trial of the other offense, “the decision of

whether to sever the offenses for trial is within the discretion of the trial court.”14

Given these circumstances, we conclude that the trial court did not abuse its

discretion in joining the separate indictments against Algren for trial.

2. Algren also contends that the trial court erred by failing to charge the jury

on the law regarding similar-transaction evidence. Once again, we disagree.

Initially, it is important to note that Algren did not object to any portion of the

trial court’s jury charges, and under OCGA § 17-8-58, “[a]ny party who objects to

any portion of the charge to the jury or the failure to charge the jury shall inform the

court of the specific objection and the grounds for such objection before the jury

13
See Heck, 313 Ga. App. at 575 (1) (holding that trial court did not abuse its
discretion in denying defendant’s motion to sever charges because, inter alia, child-
molestation charges in one indictment would have been admissible as similar-
transaction evidence in trial on similar child-molestation charges). We note that
Algren was tried in June 2013, and, therefore, the new Evidence Code, which
eliminated bent-of-mind and course-of-conduct exceptions to similar-transaction
evidence, was applicable. See Ga. Laws 2011, p. 99, § 101; OCGA § 24-4-404 (b).
However, in criminal proceedings in which the defendant is accused of a sexual
assault, the new Code includes a provision for the admission of certain prior sexual
assaults or child-molestation offenses for bearing on any matters to which they are
relevant. See OCGA §§ 24-4-413; 24-4-414.
14
Heck, 313 Ga. App. at 575 (1); see Stewart, 277 Ga. at 140.

8
retires to deliberate.”15 The failure to so object precludes “appellate review of such

portion of the jury charge, unless such portion of the jury charge constitutes plain

error which affects the substantial rights of the parties.”16 In such cases, as the

Supreme Court of Georgia has explained, “the proper inquiry is whether the

instruction was erroneous, whether it was obviously so, and whether it likely affected

the outcome of the proceedings.”17 Thus, because Algren failed to object whatsoever

to the jury charges, our review is limited to consideration in this regard.18

Here, Algren is correct that the trial court did not instruct the jury on the law

regarding similar-transaction evidence. But this failure does not constitute error by

the trial court because the State did not present any similar-transaction evidence

against Algren. Indeed, as discussed at length supra, the State argued successfully in

favor of joining the two indictments on the ground that the child-molestation charges

15
OCGA § 17-8-58 (a).
16
OCGA § 17-8-58 (b); see also Alvelo v. State, 290 Ga. 609, 614 (5) (724
SE2d 377) (2012); Wheeler v. State, 327 Ga. App. 313, 318 (758 SE2d 840) (2014).
17
Alvelo v. State, 290 Ga. at 615 (5) (punctuation omitted); see also State v.
Kelly, 290 Ga. 29, 33 (718 SE2d 232) (2011); Wagner v. State, 311 Ga. App. 589,
594 (716 SE2d 633) (2011) (Blackwell, J., concurring specially).
18
See OCGA § 17-5-58 (b); see also King v. State, 317 Ga. App. 834, 836-37
(1) (733 SE2d 21) (2012).

9
would be admissible in the statutory-rape trial as similar-transaction evidence.

Nevertheless, the simple fact is that once the trial court joined the indictments, Algren

was actually tried (and acquitted) on the child-molestation charges. Put simply,

evidence pertaining to those charges was part of the State’s case-in-chief, rather than

evidence of similar transactions. And in trying Algren on those charges, the trial court

properly instructed the jury that the State was required to prove those charges beyond

a reasonable doubt.19

It is, of course, well settled that a defendant is not “entitled to a jury charge on

legal issues which are irrelevant, not tailored to the evidence or factually

inapplicable.”20 And given that Algren was indicted and tried on the child-molestation

charges, characterizing them as similar-transaction evidence in a jury charge would

have been in error. Accordingly, the trial court did not commit plain error in refusing

to charge the jury on the law regarding similar-transaction evidence.

19
We note in passing that, in contrast, a charge on similar-transaction evidence
would have provided that “the State need only prove that the defendant committed the
prior offense by a preponderance of the evidence.” Miller v. State, 325 Ga. App. 764,
767 (2) (a) (754 SE2d 804) (2014).
20
Wicks v. State, 278 Ga. 550, 553 (5) (604 SE2d 768) (2004); accord Harris
v. State, 324 Ga. App. 411, 415 (4) (b) (750 SE2d 721) (2013); Orr v. State, 283 Ga.
App. 372, 373 (1) (641 SE2d 613) (2007).

10
 3. Algren further contends that the trial court erred in charging the jury that a

child under the age of 16 years cannot consent to sexual intercourse, arguing that,

under OCGA § 24-4-412, evidence of the victim’s consent is relevant even in

statutory-rape cases. Again, we disagree.

At the outset, we note that the fundamental rules of statutory construction

require us to “construe the statute according to its terms, to give words their plain and

ordinary meaning, and to avoid a construction that makes some language mere

surplusage.”21 Put another way, when we consider the meaning of a statute, we must

(1) “presume that the General Assembly meant what it said and said what it meant,”22

21
State v. Mussman, 289 Ga. 586, 588 (1) (713 SE2d 822) (2011) (punctuation
omitted); see also Martinez v. State, 325 Ga. App. 267, 273 (750 SE2d 504) (2013)
(“[A]s with any question of statutory interpretation, we necessarily begin our analysis
with familiar and binding canons of construction. Indeed, in considering the meaning
of a statute, our charge as an appellate court is to ‘presume that the General Assembly
meant what it said and said what it meant.’ And toward that end, we must afford the
statutory text its plain and ordinary meaning, consider the text contextually, and read
the text ‘in its most natural and reasonable way, as an ordinary speaker of the English
language would.’ In sum, where the language of a statute is plain and susceptible of
only one natural and reasonable construction, ‘courts must construe the statute
accordingly.’”) (citations and punctuation omitted).
22
Fed. Dep. Ins. Corp. v. Loudermilk, 295 Ga. 579, 588 (2) (761 SE2d 332)
(2014) (punctuation omitted); see also Deal v. Coleman, 294 Ga. 170, 172 (1) (a)
(751 SE2d 337) (2013).

11
and (2) “read the statutory text in its most natural and reasonable way, as an ordinary

speaker of the English language would.”23As our Supreme Court recently explained,

[i]n our search for the meaning of a particular statutory provision, we
look not only to the words of that provision, but we consider its legal
context as well. After all, context is a primary determinant of meaning.
For context, we may look to the other provisions of the same statute, the
structure and history of the whole statute, and the other
law—constitutional, statutory, and common law alike—that forms the
legal background of the statutory provision in question.24

This is what we mean when we speak of discerning “the intent of the legislature,”25

as that “intent” is reflected in the relevant statutory text and its contextual backdrop.26

Turning to the statute at issue, under the new Evidence Code, the revision of

the Georgia Rape Shield Statute included only minimal changes and left the former

23
Loudermilk, 295 Ga. at 588 (2) (punctuation omitted); see also Deal, 294 Ga.
at 172.
24
Loudermilk, 295 Ga. at 588 (2) (punctuation omitted); see also May v. State,
295 Ga. 388, 391-392 (761 SE2d 38) (2014); Martinez, 325 Ga. App. at 273.
25
Mussman, 289 Ga. at 588 (1) (punctuation omitted).
26
See Loudermilk, 295 Ga. at 588 (2); see also May v. State, 295 Ga. 388,
391-92 (761 SE2d 38) (2014); Martinez, 325 Ga. App. at 273.

12
version of the statute largely untouched.27 That being said, OCGA § 24-4-412 (b) of

the Rape Shield Statute provides:

In any prosecution for rape in violation of Code Section 16-6-1;
aggravated assault with the intent to rape in violation of Code Section
16-5-21; aggravated sodomy or sodomy in violation of Code Section
16-6-2; statutory rape in violation of Code Section 16-6-3; aggravated
child molestation or child molestation in violation of Code Section
16-6-4; incest in violation of Code Section 16-6-22; sexual battery in
violation of Code Section 16-6-22.1; or aggravated sexual battery in
violation of Code Section 16-6-22.2, evidence relating to the past sexual
behavior of the complaining witness may be introduced if the court,
following the procedure described in subsection (c) of this Code section,
finds that the past sexual behavior directly involved the participation of
the accused and finds that the evidence expected to be introduced
supports an inference that the accused could have reasonably believed
that the complaining witness consented to the conduct complained of in
the prosecution.

Ignoring the fact that in Georgia it is unquestionably a crime to have physical

sexual contact with a person 15 years of age or younger,28 Algren argues that because

OCGA § 24-4-412 (b) includes statutory rape as one of the prosecutions for which

27
See Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 146
(2nd ed. 2014); see also former OCGA § 24-2-3 (2011).
28
Chase v. State, 285 Ga. 693, 696 (2) (681 SE2d 116) (2009).

13
evidence of the victim’s past sexual behavior may be admissible to support a

defendant’s belief that the victim consented to the sexual conduct at issue, the trial

court, here, erred in charging the jury that “[a] child under the age of 16 cannot

consent to sexual acts.” However, while Algren’s argument perhaps demonstrates that

the drafters of OCGA § 24-4-412 (b) lacked an eye for detail, ultimately, it is neither

clever nor particularly novel. Indeed, construing the former version of the statute,

which as previously noted was only minimally changed in the new Evidence Code,

this Court held that although evidence of a victim’s past sexual behavior may be

admissible under exceptions to the statute relating to whether the victim consented,

when the complaining victim “has no legal capacity to consent, the statutory

exceptions do not apply.”29

Moreover, under the plain language of OCGA § 24-4-412 (b), the only

evidence of the victim’s past sexual behavior that is admissible to support a

defendant’s belief that the victim consented to the sexual conduct at issue is past

29
Osborne v. State, 291 Ga. App. 711, 712 (2) (662 SE2d 792) (2008); see also
Barnes v. State, 244 Ga. 302, 306 (3) (260 SE2d 40) (1979) (holding that logic and
plain meaning of the Rape Shield Act show that it should be equally applicable in a
statutory-rape case but that the exceptions in the Act relating to consent and the
accused’s prior participation would be inapplicable in such cases); Coker v. State, 164
Ga. App. 493, 494 (1) (297 SE2d 68) (1982) (holding that consent is irrelevant in
cases of statutory rape, child molestation, and enticing a child for indecent purposes).

14
sexual behavior with the defendant.30 Thus, pursuant to Algren’s argument, evidence

that S. H. consented would necessarily entail evidence that she and Algren engaged

in prior sexual acts, to which she could not consent under current law. Suffice it to

say, we flatly refuse to construe Georgia’s Rape Shield Statute in a manner that would

necessarily imply that the General Assembly intended for that statute to supplant the

clear dictates of our criminal code.31 Accordingly, the trial court did not plainly err

in charging the jury that a child under the age of 16 years cannot consent to sexual

intercourse.

4. Finally, Algren contends that the trial court erred in sentencing him for

felony statutory rape, rather than the misdemeanor offense, given that the jury did not

make a specific finding as to his or S. H.’s age. Once again, we disagree.

Under OCGA § 16-6-3 (a), “[a] person commits the offense of statutory rape

when he or she engages in sexual intercourse with any person under the age of 16

years and not his or her spouse, provided that no conviction shall be had for this

offense on the unsupported testimony of the victim.” The sentencing provision of

30
See OCGA § 24-4-412 (b).
31
See Mussman, 289 Ga. at 588 (1).

15
OCGA § 16-6-3 is divided into felony and misdemeanor subsections. Subsection (b)

provides:

Except as provided in subsection (c) of this Code section, a person
convicted of the offense of statutory rape shall be punished by
imprisonment for not less than one nor more than 20 years; provided,
however, that if the person so convicted is 21 years of age or older, such
person shall be punished by imprisonment for not less than ten nor more
than 20 years.

But under subsection (c), “[i]f the victim is at least 14 but less than 16 years of age

and the person convicted of statutory rape is 18 years of age or younger and is no

more than four years older than the victim, such person shall be guilty of a

misdemeanor.”

Relying on Apprendi v. New Jersey,32 Algren argues, as previously noted, that

because the jury did not make a specific finding as to his or S. H.’s age, he should

have only been sentenced for misdemeanor statutory rape, pursuant to OCGA § 16-6-

3 (c). In Apprendi, the Supreme Court of the United States held that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

32
530 U.S. 466 (120 SCt 2348, 147 LE2d 435) (2000).

16
reasonable doubt.”33 But importantly, the focus of Apprendi and its progeny is that

“a jury must find those facts which increase the punishment for a crime; [those cases]

do not suggest that the jury must find those mitigating facts which decrease the

punishment for a crime.”34 And with regard to Georgia’s statutory-rape statute, this

Court previously addressed this issue and held that the language in OCGA § 16-6-3

(c) establishes mitigating factors that decrease the felony punishment for the crime

of statutory rape to misdemeanor punishment, and, thus, there is no constitutional

requirement that their presence or absence be found by the jury.35

33
Id. at 490 (IV).
34
Kolar v. State, 292 Ga. App. 623, 626 (2) (665 SE2d 719) (2008); see
Apprendi, 530 U.S. at 491-94 (V) (holding that hate-crime statute, which allowed
judge to make factual determination based on preponderance of evidence, and would
increase maximum sentence of defendant, violated due process requiring such
determinations to be made by a jury on the basis of proof beyond a reasonable doubt);
see also Blakely v. Washington, 542 U.S. 296, 303-04 (II) (124 SCt 2531, 159 LE2d
403) (2004) (holding that a finding of “deliberate cruelty,” which increases statutory
maximum for offense of kidnapping, must be found by jury); Ring v. Arizona, 536
U.S. 584, 609-10 (II) (124 SCt 2428, 153 LE2d 556) (2002) (holding that the jury, not
the judge, must find the aggravating circumstances necessary for imposition of the
death penalty).
35
See Kolar, 292 Ga. App. at 629 (2) (holding that the factors set forth in the
provision of child-molestation and statutory-rape statutes were mitigating factors that
decreased felony punishment for crime to misdemeanor punishment, rather than
defining factors that characterized baseline crime as a misdemeanor, which could be
increased to a felony only if the State showed that such factors were absent).

17
 Here, the indictment charged Algren with “the offense of Statutory Rape

(OCGA § 16-6-3)” in that Algren “being older than 21 years of age, did engage in

sexual intercourse with [S. H.], a person under 16 years of age and not the spouse of

the accused . . . .” Additionally, the undisputed evidence at trial proved that S. H. was

14-years-old and that she was not Algren’s spouse at the time they engaged in sexual

intercourse. Given these circumstances, the trial court was not required to sentence

Algren for misdemeanor statutory rape, pursuant to OCGA § 16-6-3 (c).36

Accordingly, the trial court did not err in sentencing Algren for felony statutory rape.

Judgment affirmed. Doyle, P. J., and Miller, J., concur.

36
See Rodriguez v. State, 306 Ga. App. 169, 171 (2) (702 SE2d 10) (2010)
(holding that because the indictment adequately set forth a charge of felony statutory
rape and because evidence proved charge as indicted, the trial court was not required
to sentence defendant for misdemeanor statutory rape); Attaway v. State, 284 Ga.
App. 855, 856-57 (2) (644 SE2d 919) (2007) (same); Orr, 283 Ga. App. at 373 (2)
(holding that trial court was not compelled, under the rule of lenity, to impose
misdemeanor statutory rape penalty even though indictment made no mention of
defendant’s age).

18