Sexual Battery

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A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.

How does the law define intimate parts? It is defined as the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.

The intent to do the act is a question of fact for the jury to decide.

Whether there is a conflict in the evidence of whether the victim voluntarily submitted to the contact, it is for a jury to decide that conflict in testimony.

Sexual battery does not require any sexual contact. It only requires the non-consensual, intentional physical contact with the victims’ intimate body parts.

Prior to 2021, an individual younger than 16 years old was legally incapable of consenting to sexual contact. In the case of Watson v. State, the Supreme Court construed the statute to require actual proof of the victim’s lack of consent, regardless of the victim’s age.

Sexual battery is punished as a misdemeanor of a high and aggravated nature. However, if the victim is under 16 years of age, it is punishable as a felony.

The rule of lenity does not apply between sexual battery and child molestation because child molestation requires additional proof of the defendant seeking to arouse his own sexual desires, which is not required for sexual battery. Furthermore, sexual battery requires proof of physical contact and the victims lack of consent, which are not required for the offense of child molestation.

Felony Murder

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If an individual dies during the commission of a dangerous felony the aggressor can be charged with felony murder even if there was no intent to cause a death. For example, if person X fights person V with no intention of ending V’s life but V ends up dying from his injuries. X will likely be charged with aggravated battery for the beating and felony murder based on the aggravated battery because V died from the injuries he sustained during the felony of aggravated battery by X.

If you or a loved one has been charged with felony murder it is important to reach out to a qualified criminal defense attorney as soon as possible. The penalty for felony murder is the SAME as a murder committed with the intent to kill. It carries a mandatory sentence of life in prison, with or without parole. In Georgia, 30 years of the life sentence must be served before you are eligible for parole. Give us a call at 404-581-0999 for a free consultation.

Marijuana Offenses in Georgia

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There are several ways the State can charge you with marijuana offenses in Georgia:

  • Possession of Less Than an Ounce– If you are arrested with less than an ounce of marijuana, you will be charged with a misdemeanor. The penalty includes up to a $1,000 fine and up to 12 months in jail.
  • Possession of More Than an Ounce– If you are arrested with more than an ounce of marijuana, you will be charged with a felony. The penalty is 1-10 years and a fine.
  • Possession With Intent to Distribute– If you are arrested with marijuana and the State can prove that you intended to distribute the marijuana, they can charge you with possession with intent to distribute. The intent part of the charge requires proof by the State, but they can prove you intended to distribute the marijuana by bringing in witnesses to testify or with other evidence such as scales or packaging material. If you are found guilty of possession with intent to distribute, the first offense carries a possible prison sentence of 1-10 years. A second or subsequent offense carries a mandatory 10 years in prison and up to 40 years.
  • Trafficking Marijuana– If you are arrested with more than 10 pounds of marijuana, you will be charged with trafficking marijuana. The State only has to prove that you knowingly possessed the marijuana, not that you knew the weight of the marijuana. If the weight of the drug is 10-2,000 pounds, the penalty is 5 years in prison and a $100,000 fine. If the weight of the drug is 2,000-10,000 pounds, the penalty is 7 years in prison and a $250,000 fine. If the weight is more than 10,000 pounds, the penalty is 15 years in prison and a $1 million fine.

If you are charged with a marijuana offense, it is important to hire an experienced attorney to help defend you. First, it is important that the search that resulted in the drugs being found did not violate your constitutional rights. Next, the lawyers at W. Scott Smith will explore your possible defenses, such as lack of intent or lack of knowledge. The lawyers at W. Scott Smith have years of experience defending marijuana offenses. If you are charged in Fulton, Gwinnett, Cobb, Clayton, Dekalb, Cherokee, Fayette, or Barrow County, call our office at 404-581-0999 for a free consultation.

Conditional Discharge

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Conditional Discharge or Drug First Offender is a once in a lifetime opportunity that allows someone who has been charged for the first time with possessing drugs or a non-violent property crime related to drug or alcohol addiction to resolve their case without a felony conviction. The resolution will typically involve probation and some sort of rehabilitation and treatment. Once the terms of the sentence are completed successfully the case will be dismissed and will not be considered a conviction. If you or a loved one has been charged with a drug offense you need to speak with an experience attorney to determine if you could be eligible for conditional discharged. Please give us a call at 404-581-0998 for a free case consultation.

First Offender

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If you have been charged with a felony offense (with some exceptions) and have never pleaded guilty to or been convicted of a felony, you may be eligible for First Offender treatment under OCGA § 42-8-60. Charges that are considered serious violent felonies, e.g. murder, armed robbery, kidnapping, etc and sexual offenses are not eligible for First Offender treatment.

First Offender allows you to enter a plea to the offense, but it is not considered a conviction. If you successfully complete all the terms of the sentence, the case will be discharged and you will be exonerated as a matter of law. This means that you can honestly say that you have not been convicted of a felony and all of your civil rights are restored.

This is a once in a lifetime opportunity and if you or a loved one has been charged with a felony offense and you think you might be eligible for First Offender, please give us a call at 404-581-0999.

 

Aggravated Stalking

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By: Attorney Erin Dohnalek

In Georgia, aggravated stalking is charged as a felony. It is set out in O.C.G.A. § 16-5-91. This statute states that an individual commits aggravated stalking when:

  • He/she violates a “no contact” or “stay away” provision of their bond;
  • He/she violates a temporary restraining order, temporary protective order, permanent protective order, preliminary injunction, or permanent injunction ordering them to have no contact with the alleged victim;
  • He/she violates a “no contact” or “stay away” condition of their pretrial release, condition of probation, or condition of parole; and
  • The individual follows, places under surveillance, or contacts the alleged victim without his/her consent for the purpose of harassing and intimidating.

In Georgia, there is no requirement that the accused has to have actual notice of the “no contact” provision as a condition of bond, pretrial release, probation/ parole, or from a temporary protective order. The contact alone is enough, even if the accused was not aware of the “no contact” order. See Revere v. State, 277 Ga. App. 393 (2006). “Contact” can also be established by phone, email, or mail. It does not need to be in-person contact in order to be sufficient to convict for aggravated stalking. See Murden v. State, 258 Ga. App. 585 (2002).

Additionally, even if the alleged victim allowed contact, or initiated contact, after the “no contact” provision was ordered, that does not mean that an accused can no longer be prosecuted for aggravated stalking. An accused can be prosecuted if the alleged victim changes his/her mind, and decides that they no longer want contact with the accused, if at the time of the contact there is a “no contact” provision in place. See Revere v. State, 277 Ga. App. 393 (2006).

Finally, a single incident of stalking is not sufficient to convict an accused of aggravated stalking. There must be a pattern of harassing and intimidating conduct, and generally a single incident alone is not enough. See State v. Burke, 287 Ga. 377 (2010).

Sentencing:

Any individual convicted of this crime will be sentenced to 1-10 years in prison, and fined up to $10,000. However, the reduced charge of aggravated stalking is characterized as a “violation of a criminal protective order.” This charge is a misdemeanor and the sentencing is much less punitive. An experienced criminal defense attorney may be able to negotiate sentencing to fall under the misdemeanor statute.

Contact Us

Due to the severity of the punishment for aggravated stalking, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of this crime, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with aggravated stalking, please call our office today at 404-581-0999 for a free consultation.

I am under 21 and got a DUI… help!

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If you are under 21 and have been charged with DUI, it is important to note that there are big differences between defending a DUI when someone is over 21 and a DUI where you were under 21.

The biggest difference between them is the acceptable blood alcohol content for young drivers. While the legal limit for drivers 21 and over is .08, drivers under 21 may not “be in actual physical control of any moving vehicle while the person’s alcohol concentration is 0.02 grams or more at any time within 3 hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.” OCGA 40-6-391(k)(1). This means that folks under 21 can drink less and still be considered DUI.

The other main difference is the mandatory minimum punishment under law. For a first offense in 5 years, folks under 21 who plead or are found guilty to DUI must be sentenced to 1 day in jail (although you will receive credit for any time you already served, and may be able to serve your time on weekends or during non-working hours), 40 hours of community service which must be completed within 60 days of the date of sentencing, an alcohol and drug evaluation and any additional treatment recommended by the evaluator, an a DUI Risk Reduction class. You must also be on probation for 12 months. Your license may also be suspended.

If you are under 21 and you have been charged with DUI, it is important to understand your rights and any defenses. Call our office for a free consultation. 404-581-0999.

Keeping Evidence of Bad Character Out of Your Trial

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It is not uncommon in criminal cases for the state to attempt to introduce evidence of other bad things defendants have done. The Georgia Rules of Evidence are very clear that this evidence can not be admitted for propensity purposes. That means the state can’t introduce bad character evidence just to try to make the jury believe that because a defendant acted a certain way in the past that they acted in the same way during the commission of whatever crime they are charged with. For example, if you are charged with armed robbery, the state cannot admit evidence that you were involved in another armed robbery just to say “because he armed robbed someone in the past, he armed robbed someone this time”. But the state will also often try to use the Rules of Evidence to get around this ban on bad character evidence. If the state can convince a judge that they are attempting to bring in the evidence as proof of intent, motive, knowledge, identity, plan, or purpose, they will be allowed to present the evidence.

Additionally, the evidence the state is attempting to introduce should be kept out if any probative value (i.e., usefulness) is substantially outweighed by prejudice to the defendant. It is important to hire an attorney who will zealously fight to keep any bad character evidence out of your trial. At the Law Offices of W. Scott Smith, we fight to protect our clients and will work tirelessly to prevent the state from being able to introduce this bad character evidence to the jury. If you have been charged with a serious crime like murder, rape, armed robbery, or aggravated assault in Fulton, Cobb, Dekalb, Gwinnett, Clayton, or Rockdale Counties, call our office at 404-581-0999 for a free consultation.

Hiring an Attorney to Preserve Alibi Evidence

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If you have been falsely charged with a crime, there may be evidence that supports an alibi defense. For example, there may be surveillance video that shows you at a location other than the crime scene at the time of the crime or your cell phone might show that you were in another state altogether.  Unfortunately, this evidence will not be accessible forever. Video surveillance is often only stored for a short period of time and cell phone records, depending on the company, are only stored for about 10-90 days.

However, if hired in time, a lawyer can send something called a spoliation letter to companies demanding that certain evidence is preserved. This letter simply alerts the company that a criminal investigation is ongoing and that the evidence should be preserved to assist your attorney in supporting your alibi. For example, if you are charged with murder in Fulton County but you were shopping at a Walmart in Cobb County at the time of the murder, it is important that we reach out to Walmart and preserve the surveillance video of you entering the store at the time of the murder. Or, if you are charged with an armed robbery in Dekalb County but your cell phone is pinging off a tower in Gwinnett County at the time of the robbery, it is important that the location data from your cell phone is preserved.

In this situation, time really is of the essence. The lawyers at W. Scott Smith recognize that swift action is required in situations like this. If you are charged with a crime and believe that evidence exists that proves your innocence, call our office at 404-581-0999 for a free consultation.

Changes to the Way Search Warrants for Cell Phone Content Must be Obtained

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A new decision released by the Georgia Supreme Court changes the way police must obtain warrants if they want to search the contents of your cell phone. In State v. Wilson, released on February 21, the Court tightened the reigns on what officers must include in their search warrants.

In Wilson, a defendant was on trial for murder. The defendant’s lawyer argued that the search of his cell phone was illegal because it did not specify what police were looking for and sought to have any evidence recovered from his phone kept out of his trial. The trial court agreed with the defendant’s attorney and said that “the search warrant was overly broad and authorized a general search of [the defendant’s] personal effects without probable cause in violation of the Fourth Amendment and O.C.G.A § 17-5-21”.  The judge ruled that evidence found in defendant’s phone could not be used in trial.

The State appealed the trial court’s decision, but the Georgia Supreme Court agreed with the trial court. The Supreme Court reminded us that the Fourth Amendment requires that search warrants list the particular items sought in order to prevent “general, exploratory rummaging in a person’s belongings”. Because the search warrant in Wilson just listed “contents of phone” and didn’t mention that it was limited to evidence pertaining to the commission of a certain crime, it was overbroad and illegal, and the search was unconstitutional.

This means that search warrants for the contents of phones must contains a particular description  of the things to be seized (i.e. text messages or pictures in a child molestation case, or internet search history in a murder case). If you have been charged with a crime in Fulton, Cobb, Dekalb, Forsyth, Gwinnett, Clayton, Rockdale, or any metro county,  and the police searched your phone, it is important to have a lawyer review the search warrant and see if it was properly executed. The lawyers at W. Scott Smith specialize in spotting issues like this and standing up to the State to protect our clients’ constitutional rights. Call our office at 404-581-0999 today for a free consultation.