The full name of the defendant is displayed as initials in an effort to protect the identity of the accuser, who is a minor, as well as the accused, who has yet to face a jury of his peers.
The Georgia Court of Appeals recently dismissed the state’s appeal in a pending Child Molestation case in Effingham County.
The court said that the state did not have the latitude to file the appeal in the first place under current Georgia law.
Background
According to court documents, Effingham County resident JJS found himself in the cross hairs of an investigation during a separation with his wife at the time. He had his then-wife of six years served with divorce papers in January 2020. Three days later, JJS’s stepdaughter disclosed to a school counselor that she had been sexually assaulted by her stepfather five years prior.
At the end of February, the Springfield Police Department sought warrants for JJS for acts that allegedly occurred sometime between 2015 and 2019. He was arrested shortly thereafter and remanded to the Effingham County Jail.
A grand jury indicted JJS in December 2020 on seven counts, including:
- Aggravated Sexual Battery
- Child Molestation (x2)
- Cruelty to Children 1st Degree (x2)
- Terroristic Threats (x2)
JJS had been in custody for 30 months awaiting the adjudication of his case. The 2020 case, initially handled by Brian Deal, once the Chief ADA for the Effingham office of the District Attorney’s Office, was passed off to the eldest ADA, Christy Barker. Barker spent decades in Chatham County and only recently moved to the Ogeechee Judicial Circuit.
Represented by Savannah defense attorney Bobby Phillips, the case finally made its way to Jury Selection on June 9, 2022, at which time a jury was selected by the state and the defense for an August jury trial.
Motions Filed By the State
In May of 2022, the district attorney’s office had announced its intention to introduce prior acts and to seek recidivist punishment in the sentencing phase, which means that in the event of guilty convictions on some or all of the charges, JJS’s prior acts would be introduced to ensure the maximum sentencing without the possibility of parole. These motions came some 29 months into the process and just ahead of jury selection.
At the crux of the motions was was the fact that in 1994, JJS entered a guilty plea for Statutory Rape. At the time of the plea, JJS was 19 and the female victim in the case was 14. Court records indicate there was an ongoing relationship between the parties. JJS was sentenced to a probation-only sentence with 90-120 days in a boot camp.
JJS has also had a handful of other charges over the years, most of which were dismissed or conditionally discharged after completion of pre-trial diversion programs. None have included any offense that is sexual in nature, however.
A month after jury selection, on July 6, 2022, the state amended its motion to include additional information and Judge Gates Peed subsequently issued a ruling two weeks later on July 19, 2022.
Judge Peed did not buy into the State’s argument and subsequently issued an Order denying any mention by the State of the Statutory Rape plea from 27 years ago.
“Based on the nature of the plea, it appears that this sexual contact between the Defendant and the victim did not involve force*. The Court further notes that this conviction is from 27 years ago and 21 years before the earliest crime alleged in the indictment. As such, the Court finds that the 1994 conviction is dissimilar to the allegations in the current case.”
*Author’s note [to the extent that it is comparable to what is alleged in the current indictment. No one under the age of 16 can consent under Georgia law]
Peed also wrote that the State’s need for the evidence at trial was low since the accuser from the 2020 case is expected to testify at trial. He said the standard of probative value substantially outweighing the danger of unfair prejudice had not been met.
Appeal to Higher Court
ADA Christy Barker and District Attorney Daphne Totten subsequently appealed Peed’s ruling to the Georgia Court of Appeals while Phillips, on behalf of his client, moved for the appeal to be dismissed.
Appeals Court Ruling
While the State argued that it “met all of the statutory requirements that it could control,” the Court of Appeals said under the clearly outlined statute on the subject that the State was only allowed to appeal if the jury had not yet been impaneled.
“…[A]ppellate courts do not have jurisdiction to entertain an appeal by the State in a criminal case that falls outside the ambit of [the provision of OCGA 5-7-1(a).”
Under case law provisions, an impaneled jury is defined as a jurors that had been “summoned, have appeared for service and have not yet been dismissed.” During jury selection, jurors are given information about the forthcoming case and are introduced to the defendant for which the case will include. As a result, the Court of Appeals determined JJS’s jury was impaneled on June 9, 2022.
“Absent such a ruling [prior to the impaneling of the jury], the State is not permitted to appeal…because OCGA 5-7-1(a)(5) does not authorize us to address the merits of the State’s appeal, we grant [the] motion to dismiss,” the court concluded.
The state’s appeal in direct conflict with what the state statute outlines added an additional twelve months to the timeline from arrest of JJS to possible trial. As of July 20, 2023, JJS’s case has been pending for 41 months.
Read more about the tenure of District Attorney Daphne Totten here.
