THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
August 27, 2020
In the Court of Appeals of Georgia
A20A1017. RICH v. THE STATE. DO-035 C
DOYLE, Presiding Judge.
Laura Rich moved under OCGA § 35-3-37 (m) to seal her criminal record that
is maintained by the Clerk of the Superior Court of Cherokee County. The trial court
denied her motion, and she appeals. Finding no abuse of discretion, we affirm.
The record shows that Rich was charged with three counts of sexual assault of
a student in violation of OCGA § 16-6-5.1 (b) (1), which prohibits sexual contact
between a teacher and a student.1 Rich moved to quash the indictment, and the trial
court granted the motion, concluding that OCGA § 16-6-5.1 did not apply to Rich’s
1
The indictment alleged that Rich had sexual intercourse with two student
victims.
alleged sexual conduct with two students because she was a substitute teacher at the
time — a contract employee — and the conduct occurred outside of school.
The State appealed, and this Court affirmed the trial court’s order quashing the
indictment in a published opinion.2 This Court, strictly construing the statute,
“determine[d] that Rich was not a ‘teacher’ for purposes of OCGA § 16-6-5.1 (b)
(1)”3 because she “did not hold a teaching certificate; was not on contract as a
teacher; did not actually teach or instruct classes; and had considerably fewer
2
See State v. Rich, 348 Ga. App. 467 (823 SE2d 563) (2019).
3
OCGA § 16-6-5.1 (b) (1) (2015) provided in relevant part: “A person who has
supervisory or disciplinary authority over another individual commits sexual assault
when that person . . . [i]s a teacher, principal, assistant principal, or other
administrator of any school and engages in sexual contact with such other individual
who the actor knew or should have known is enrolled at the same school.” We note
that the Code section was amended and, as of July 1, 2019, provides in relevant part:
“An employee or agent commits the offense of improper sexual contact by employee
or agent in the first degree when such employee or agent knowingly engages in
sexually explicit conduct with another person whom such employee or agent knows
or reasonably should have known is contemporaneously: (1) Enrolled as a student at
a school of which he or she is an employee or agent.” “Employee” is defined as “an
individual who works for salary, wages, or other remuneration for an employer.”
OCGA § 16-6-5.1 (a) (4). Accordingly, Rich’s conduct, as charged in the indictment,
would constitute a crime today.
2
obligations than the teacher for whom she substituted (and even a long-term
substitute). . . .”4
Thereafter, Rich moved to seal the records of the clerk of court pursuant to
OCGA § 35-3-37 (m).5 Following a hearing, the trial court denied the motion,
“find[ing] by a preponderance of the evidence, that due to the allegations in the case
and the benefit of record restriction enjoyed by [Rich], the harm resulting to [her]
privacy interest is not clearly outweighed by the public’s right to know.” The trial
court noted that
in [Rich’s] favor is that her actions were not considered a crime, and as
a result, [Rich] enjoys the benefit of record restriction. However, while
[Rich’s] actions did not constitute a crime, this incident occurred during
a time when [Rich] worked occasionally as a substitute teacher. Sealing
the [c]lerk’s file in this case goes against the public’s interest in this
criminal history record information [sic] and transparency.
Rich appeals, arguing that the trial court abused its discretion by denying her
motion to seal the clerk’s file because (a) the public has no interest in criminal history
4
Id. at 473-474
5
In the motion, Rich contends that “[t]he record of the case is harmful to [her]
privacy[,] . . . and this harm clearly outweighs the public interest in the charges being
publicly available. The charges significantly interfere with [Rich’s] ability to secure
employment and other opportunities.”
3
information if there has been a judicial determination that the defendant has not
committed a crime; (b) the trial court applied the wrong standard; and (c) the
publicity and prior published opinion in this case do not diminish her privacy interest
in the clerk’s file. We find no basis for reversal.
OCGA § 35-3-37 (m) (2) provides:
The court shall order all criminal history record information in the
custody of the clerk of court, including within any index, to be restricted
and unavailable to the public if the court finds by a preponderance of
the evidence that: (A) The criminal history record information has been
restricted pursuant to this Code section; and (B) The harm otherwise
resulting to the privacy of the individual clearly outweighs the public
interest in the criminal history record information being publicly
available.6
We review a trial court’s decision on a motion to seal a defendant’s criminal record
for an abuse of discretion.7
Here, the parties stipulated that Rich’s criminal history record information has
been restricted. Accordingly, the sole issue in this case is whether the trial court
abused its discretion by finding by a preponderance of the evidence that the harm
6
(Emphasis added.)
7
See Doe v. State, 347 Ga. App. 246, 253-254 (4) (819 SE2d 58) (2018).
4
otherwise resulting to Rich’s privacy did not clearly outweigh the public interest in
the public availability of her criminal record.8
[T]o satisfy the preponderance-of-the-evidence standard, [Rich] was
required to demonstrate that the superior weight of evidence upon the
issues involved, which, while not enough to free the mind wholly from
a reasonable doubt, is yet sufficient to incline a reasonable and impartial
mind to one side of the issue rather than to the other.9
At the motion hearing, Rich’s attorney argued that
Rich’s privacy interest . . . [that] she is concerned about, in talking to
her, her main concern is the curiosity of her children. Her children are
starting to become of age and, I think, have had some questions about
what happened to her. And so I know on a personal level that’s one of
the things that she’s most concerned with, is them coming to the
courthouse and looking. But there’s also neighborhood, extended
family, social, and church connections. She does have a . . . good job. It
is not involving children. She works in the veterinary sciences, is — is
pursuing higher education in that field.10
8
See OCGA § 35-3-37 (m) (2) (B).
9
(Punctuation omitted.) Doe, 354 Ga. App. at 396 (1), quoting Coxwell v.
Coxwell, 296 Ga. 311, 314 (2) (765 SE2d 320) (2014).
10
In response, the State countered that Rich’s “privacy expectation is somewhat
illusory in this case because [of] the amount of media attention that this case received
initially upon her arrest, the amount of media attention subsequent in those days
following her arrest, that anybody who has access to the Internet is going to be able
5
Rich did not testify at the hearing on the motion to seal her record, nor is there
an affidavit from her in the record. And her attorney’s representations about what
Rich relayed to him are not evidence.11 Furthermore, even assuming the
representations were testified to by Rich, they “lacked sufficient detail and specificity
to meet the burden of showing by a preponderance of the evidence that [her] privacy
interests clearly outweighed the public’s interest in the records. Accordingly, we
cannot say that the trial court abused its discretion [by] denying [Rich’s] motion.”12
Judgment affirmed. McFadden, C. J., and Hodges, J., concur.
to find. . . .”
11
See R. C. Acres, Inc. v. Mommies Properties, LLC, 338 Ga. App. 569, 579
(790 SE2d 824) (2016) (“argument of counsel and unsworn statements made at a trial
court hearing [do not] constitute competent evidence”); Watson v. Ga. Dept. of
Transp., 288 Ga. App. 40, 42, n. 2 (653 SE2d 763) (2007) (holding that counsel’s
statements at a hearing are not evidence).
12
(Footnote omitted.) Doe, 354 Ga. at 396-397 (1), citing Overby v. State, 315
Ga. App. 735, 738-39 (728 SE2d 278) (2012) & Anderson v. State, 212 Ga. App. 329,
329 (442 SE2d 268) (1994).
6