Statutory Rape in Fulton County

/in , , , , , , , , , /by

Statutory rape is defined in § 16-6-3 of the Georgia criminal code. The statute says that “a person commits statutory rape when he or she engages in sexual intercourse with any person who is under the age of 16 years and not his or her spouse”.

Many people wrongly believe that there is a defense to statutory rape if the victim is untruthful about their age and the accused believes that the victim older than 16. However, statutory rape is a strict liability offense, meaning that the belief of the accused does not matter. The only real defense is that sexual intercourse did not actually occur.

It is important to note that unsupported testimony of the victim is not enough to support a conviction for statutory rape. This means that a victim simply saying that they had sexual intercourse with the accused is not enough. There must be some other evidence proving that sexual intercourse actually occurred. This is where the defense may be found!

The punishments you could face if you are convicted of statutory rape range depending on the age of the accused and the victim. If the accused is over 21, they face 10-20 years in prison. If the victim is between 14 and 16 years old, and the accused is not yet 18 (and not more than 4 years older than the victim), a conviction would only result in a misdemeanor.

If you have been accused of statutory rape in Fulton County, it is important that you hire an attorney with experience in fighting these cases. Call the Law Office of Scott Smith today for a free consultation.

Statutory Rape in Gwinnett County

/in , , , , , , , , /by

Statutory rape is defined in § 16-6-3 of the Georgia criminal code. The statute says that “a person commits statutory rape when he or she engages in sexual intercourse with any person who is under the age of 16 years and not his or her spouse”.

Many people wrongly believe that there is a defense to statutory rape if the victim is untruthful about their age and the accused believes that the victim older than 16. However, statutory rape is a strict liability offense, meaning that the belief of the accused does not matter. The only real defense is that sexual intercourse did not actually occur.

It is important to note that unsupported testimony of the victim is not enough to support a conviction for statutory rape. This means that a victim simply saying that they had sexual intercourse with the accused is not enough. There must be some other evidence proving that sexual intercourse actually occurred. This is where the defense may be found!

The punishments you could face if you are convicted of statutory rape range depending on the age of the accused and the victim. If the accused is over 21, they face 10-20 years in prison. If the victim is between 14 and 16 years old, and the accused is not yet 18 (and not more than 4 years older than the victim), a conviction would only result in a misdemeanor.

If you have been accused of statutory rape in Gwinnett County, it is important that you hire an attorney with experience in fighting these cases. Call the Law Office of Scott Smith today for a free consultation.

Aggravated Child Molestation in Bartow County

/in , , , , , , , /by

Aggravated Child Molestation is a serious crime in the State of Georgia. In fact, it is the worst crime that one can be accused of committing. It is imperative that you retain a qualified attorney immediately if you are being accused of aggravated child molestation in Bartow County. Many allegations of aggravated child molestation are false. Even if you know the allegation of aggravated child molestation against you is made up, you still must take it very seriously and aggressively defend yourself. All it takes is the word of the child, if believed, to convict you.

The Bartow County Courthouse is at 135 W. Cherokee Avenue, Cartersville, Georgia 30120

O.C.G.A. § 16-6-4 defines aggravated child molestation as follows:

A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which physically injures the child or involves an act of sodomy.

If the alleged victim was physically injured then it is not necessary for the state to prove sodomy.

It must be shown that the alleged victim was under 16 at the time of the act in order to be charged with aggravated child molestation.

Penetration or force is not a requirement of aggravated child molestation. The victim’s testimony that it was painful is sufficient to prove physical injury and no medical evidence is required to corroborate.

If you are convicted of aggravated child molestation in Bartow County, then the sentence will either be life imprisonment or a split sentence of a mandatory minimum of 25 years imprisonment and probation for life. The defendant will also have to be placed on the sex offender registry for life.

If someone is making an allegation of aggravated child molestation against you, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of aggravated child molestation and call us. Time is of the essence to properly investigate the allegations.

Do not wait until the   Bartow County District Attorney actually returns an indictment against you before seeking an attorney. Child Molestation cases can be proven solely on the victim’s own testimony. Therefore, it is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Child Cruelty in Dekalb County

/in , , , , , /by

In Georgia, there are three types of child cruelty- 1st, 2nd, and 3rd degree.

  • 1st degree child cruelty occurs when a parent, guardian, or other person supervising a child willfully deprives a child of necessary sustenance to the point that the child’s health or well-being is jeopardized OR when a person maliciously causes a child under 18 cruel or excessive mental or physical pain. 1st degree child cruelty is a felony and, if you are found guilty, you will be punished by 5 to 20 years in prison.
  • 2nd degree child cruelty occurs when a person acts or fails to act in a way that demonstrates a willful and wanton disregard for the safety of others and that act or failure to act causes cruel or excessive mental or physical pain to a child under 18 years old. 2nd degree child cruelty is also a felony and, if you are found guilty, you will be punished by 1 to 10 years in prison.
  • 3rd degree child cruelty occurs when a person is the primary aggressor intentionally allows a child under the age of 18 to witness the commission of a forcible felony or family violence battery OR when a person knows that a child under the age of 18 is present and sees or hears the person commit a forcible felony or family violence battery. A person convicted of 3rd degree child cruelty is guilty of a misdemeanor.

 

As you can see, the punishment for child cruelty can be severe. It is important that you hire a lawyer experienced in defending child cruelty cases. The lawyers at W. Scott Smith will zealously defend you against child cruelty allegations. If you find yourself accused of child cruelty, call our office at 404-581-0999 today for a free consultation.

Theft by Receiving Stolen Property in DeKalb County

/in , , , , , , , /by

A person commits the offense of theft by receiving stolen property when s/he receives, disposes of, or retains stolen property which s/he knows or should have known was stolen unless the property is received, disposed of, or retained with the intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.  OCGA § 16-8-7. Guns and cars are the most common property associated with theft by receiving stolen property charges.

In order to sustain a conviction for theft by receiving the state is required to prove beyond a reasonable doubt that the accused KNEW the property was stolen. That knowledge can be inferred (i.e. should have known) by circumstances that would be suspicious to an ordinary prudent person. For example, if you buy a brand-new Mercedes G Wagon for $5,000 and it turns out to be stolen, a jury is authorized to believe you knew it was stolen. It would be unreasonable to the average person that a brand-new car that normally costs upwards of $200,000 would be sold for $5,000. Now if we are talking about a Nissan Ultima, that $5,000 price cannot show knowledge that it was stolen because the price is reasonable. Certain damage to a vehicle, like a broken steering column or the locks being punched out, can also imply the necessary knowledge. It is much more difficult for the state to prove knowledge of a stolen gun. The Georgia appellate courts have found that purchasing a gun on the street at a reduced price or the gun being labeled “for law enforcement use” is not enough but it can be shown if the serial number has been filed off.

If you or a loved one has been charged with theft by receiving stolen property, give us a call for a free consultation.

Child Cruelty in Fulton County

/in , , , , , , , /by

In Georgia, there are three types of child cruelty- 1st, 2nd, and 3rd degree.

  • 1st degree child cruelty occurs when a parent, guardian, or other person supervising a child willfully deprives a child of necessary sustenance to the point that the child’s health or well-being is jeopardized OR when a person maliciously causes a child under 18 cruel or excessive mental or physical pain. 1st degree child cruelty is a felony and, if you are found guilty, you will be punished by 5 to 20 years in prison.
  • 2nd degree child cruelty occurs when a person acts or fails to act in a way that demonstrates a willful and wanton disregard for the safety of others and that act or failure to act causes cruel or excessive mental or physical pain to a child under 18 years old. 2nd degree child cruelty is also a felony and, if you are found guilty, you will be punished by 1 to 10 years in prison.
  • 3rd degree child cruelty occurs when a person is the primary aggressor intentionally allows a child under the age of 18 to witness the commission of a forcible felony or family violence battery OR when a person knows that a child under the age of 18 is present and sees or hears the person commit a forcible felony or family violence battery. A person convicted of 3rd degree child cruelty is guilty of a misdemeanor.

As you can see, the punishment for child cruelty can be severe. It is important that you hire a lawyer experienced in defending child cruelty cases. The lawyers at W. Scott Smith will zealously defend you against child cruelty allegations. If you find yourself accused of child cruelty, call our office at 404-581-0999 today for a free consultation.

Child Molestation in Cherokee County

/in , , , , , , , , , /by

Child Molestation is a serious crime in the State of Georgia. If you are arrested in Cherokee County for child molestation or aggravated child molestation, please do not make any statements to the police. It is imperative that you retain a qualified attorney immediately if you are being accused of child molestation. The Cherokee County District Attorney’s Office has a unit called the Crimes Against Women and Children Unit and they zealously prosecute these cases and they are very prepared. Many allegations of child molestation are false. Even if you know the allegation of child molestation against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, you will be on a calendar the next day for First Appearance. At this hearing, the Cherokee County Magistrate Judge will read the warrants to you. They then might consider bond depending on the allegations but will likely deny bond in a child molestation. You will then need to file a motion for a formal bond hearing and a preliminary hearing. These hearings take place at the Cherokee County Courthouse.  It is crucial to get an attorney retained to be at the First Appearance hearing at the Cherokee County Courthouse.

O.C.G.A. § 16-6-4 defines child molestation as follows:

A person commits the offense of child molestation when such person: Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the accused OR by means of electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

Child Molestation is a specific intent crime. Whether the accused has the requisite intent when he committed the act of child molestation is up to a jury. The jury can infer the requisite intent of “arousing or satisfying sexual desires” from the commission of the act. However, proof of the accused’s actual arousal is not required. Intent can be inferred from the testimony of the victim or from the actions of the accused.

No penetration is required for child molestation. All that is required is the touching of the child’s body along with the requisite intent. It does not matter whether the child was clothed or unclothed in determining whether the act was immoral or indecent.

The indictment does not have to allege the specific details of the child molestation. It can use general language of the statute.

The punishment for child molestation is a mandatory of 5 years to 20 years in prison. If it a second conviction for child molestation then it can be life in prison or a mandatory 10 years up to 30 years in prison.

Possession of Tools – Cobb County Criminal Defense Attorney

/in , , , , , , /by

Georgia law criminalizes the possession of tools for the commission of a crime. In fact, it is a felony offense. If you are arrested in Cobb County for Possession of Tools, the First Appearance hearing will be the initial court appearance in front of a Judge. This occurs within 48 hours of an arrest without a warrant, or 72 hours if there was an arrest warrant. The Cobb County Judge will notify the person of the charges, as well as set bond at this stage.

If arrested in Marietta and Cobb County for Possession of Tools, the case will be prosecuted by the Cobb County District Attorney’s Office. The next court date will be the Arraignment and takes place at the Cobb County Superior Court.

Not all tools in your possession will result in criminal charges. The law states it is unlawful to possession any tool, explosive, or device commonly used in burglary, theft, or another crime, with the intent to make use thereof in the commission of a crime.

Examples of tools that can result in criminal charges are crowbars and glass break devices. For example, you could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand. The tools do not have to do with burglary to fall under this crime. For example, we routinely see pipes and scales charged as Possession of Tools, as these items are used to commit crimes of Possession of Drugs. In these instances, the rule of Lenity applies, which is discussed below under the Defenses section

 

What is the sentence for Possession of Tools in Cobb County?

The sentence for Possession of Tools is a 1 to 5 year imprisonment sentence. Possession of tools is a felony offense, which is sentenced more harshly than misdemeanors. This is found at O.C.G.A. § 16-7-20.

 

What are Possible Defenses to Possession of Tools in Cobb County?

First, the mere possession of a common instrument is not a crime. A screw driver can be used to commit crimes, but it can also be used for numerous other lawful purposes. The same goes with wire cutters, flashlights, and gloves. These items are commonly used for all sorts of lawful and legitimate activities. The State must prove, beyond a reasonable doubt, that there was intent to use the tool to commit a crime. It is an incredibly high standard, especially since tools are used for so many other purposes.

Additionally, any time contraband is found, a thorough investigation must be conducted by a criminal defense attorney very quickly after arrest, into whether or not a valid, lawful, and constitutional search had occurred. We all have a right to be free from unreasonable searches and seizures. An officer cannot search your car without probable cause of a crime occurring, and then later charge you after finding a tool common in burglaries. In this instance, the tools found could be suppressed, and the case subsequently dismissed.

Other defenses fall on whether or not the tool is one that is commonly used for the commission of the crime. The State must not only prove possession of a tool but it must be one that is commonly used to commit crimes. For example, Georgia law has held that body armor is not a tool commonly used in armed robbery, and thus there is insufficient evidence to show proof Possession of Tools. Georgia law has also held a two-by-four was not a tool for purposes of this statute in an Armed Robbery case because it is not commonly used in armed robberies.

The rule of lenity may also apply in felony Possession of Tools cases. For example, if the conduct alleged falls within both felony Possession of Tools and misdemeanor Possession of Drug Related Object, then the Lenity rule requires that person be subject to misdemeanor penalties.

If you or a loved one has been arrested for POSSESSION OF TOOLS in Cobb County, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.

Child Cruelty in Gwinnett County

/in , , , , , , , /by

In Georgia, there are three types of child cruelty- 1st, 2nd, and 3rd degree.

  • 1st degree child cruelty occurs when a parent, guardian, or other person supervising a child willfully deprives a child of necessary sustenance to the point that the child’s health or well-being is jeopardized OR when a person maliciously causes a child under 18 cruel or excessive mental or physical pain. 1st degree child cruelty is a felony and, if you are found guilty, you will be punished by 5 to 20 years in prison.
  • 2nd degree child cruelty occurs when a person acts or fails to act in a way that demonstrates a willful and wanton disregard for the safety of others and that act or failure to act causes cruel or excessive mental or physical pain to a child under 18 years old. 2nd degree child cruelty is also a felony and, if you are found guilty, you will be punished by 1 to 10 years in prison.
  • 3rd degree child cruelty occurs when a person is the primary aggressor intentionally allows a child under the age of 18 to witness the commission of a forcible felony or family violence battery OR when a person knows that a child under the age of 18 is present and sees or hears the person commit a forcible felony or family violence battery. A person convicted of 3rd degree child cruelty is guilty of a misdemeanor.

As you can see, the punishment for child cruelty can be severe. It is important that you hire a lawyer experienced in defending child cruelty cases. The lawyers at W. Scott Smith will zealously defend you against child cruelty allegations. If you find yourself accused of child cruelty, call our office at 404-581-0999 today for a free consultation.

Cobb County Sexual Battery Attorney

/in , , , , , , , , /by

Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

If the case is prosecuted as a misdemeanor, it will be handled in the Cobb County State Court. If it is prosecuted as a felony, it will take place in the Cobb County Superior Court. There are defenses to Sexual Battery in Cobb County and throughout Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Cobb County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.