Court of Appeals Vacates Court-Imposed Sex Offender Registration Requirement

In Myers v. State, the Georgia Court of Appeals held that the trial court could not order sex offender registration for a defendant who was convicted of the offense of interstate interference with custody.

Factual Background

The defendant met a 15-year-old girl online and the two communicated for a considerable length of time. The girl lived with her grandparents who had adopted her. At some point, after the girl turned 16, the defendant suggested that the girl leave home and come live with him in Missouri.

The girl then snuck out of her house and left the state with the defendant. They first went to a motel near Atlanta where they engaged in sexual intercourse. They then went to the defendant’s house in Missouri where they had sex several times over the course of a week.

The girl’s grandparents reported her missing and she was later found at the defendant’s house and returned to her home in Georgia.

Interference with Custody Charge

The defendant was arrested and charged with the offense of interstate interference with custody. The statute provides that:

The statute defines a child as anyone under the age of 17.

While the offense of interference with custody is generally just a misdemeanor, it becomes a felony if the child is taken from Georgia and into another state.

Defendant’s Conviction and Sentence

The defendant was convicted at trial and sentenced to the maximum term of five years in prison. As a condition of his sentence, the trial court ordered that the defendant must register as a sex offender.

At sentencing, the trial court acknowledged that the offense of interference with custody was not included in the list of offenses in Georgia’s sex offender registration statute (O.C.G.A. § 41-2-12) but held that it was included in the statute’s catch-all provision for “any conduct which, by its nature, is a sexual offense against a victim who is a minor.”

The defendant objected to this condition at sentencing and then appealed.

Court of Appeals’ Ruling

The Court of Appeals found that the trial court’s reasoning here was erroneous since the minor is not the victim of an interference with custody offense.

The Court explained that while the sex offender registration statute defines a minor as someone under the age of 18, the victim of an interference with custody offense is actually the “lawful custodian whose custody has been interfered with.” The Court noted that it has long held that the purpose of this particular statute is to protect the custody interests of parents and guardians from interference by others.

Therefore, the Court held that the victim of the offense in the defendant’s case was the girl’s grandfather who was the named legal custodian in the indictment. As such, this offense could not constitute an “offense against a victim who is a minor” as required by the registration statute.

As a result, the Court of Appeals vacated this part of the defendant’s sentence and remanded the case back to the trial court to remove the registration requirement.

Impact of this Decision

While this decision addressed the very specific issue of whether a court could order sex offender registration for an interference with custody offense, the broader question that it may have also answered is whether a sentencing court can order sex offender registration at all for an offense that’s not ordinarily subject to registration.

Georgia’s sex offender registration statute lists the offenses for which registration is required and sentencing courts have no control or discretion over its application. If a defendant is convicted of an offense requiring registration, the sentencing court has no authority to limit, modify, or eliminate a defendant’s duty to register.

On the other hand, it has been debated whether a sentencing court can order sex offender registration as a condition of a defendant’s sentence in cases where the offense would not normally qualify for registration. However, the Court of Appeals’ decision here seems to make clear that a judge does not have the authority to order sex offender registration unless the offense is one that is subject to the registration statute. Otherwise, the Court would have just held that it was within the trial court’s power and discretion to order the defendant to register.

The only other remaining issue is that judges might take the position that this decision does not impact their authority to order a defendant to register as a condition of probation. The defendant in this case was given the maximum sentence to serve in prison and did not get any time on probation.

Judges have traditionally enjoyed wide discretion with probation conditions, especially since they are only controlling during the period of probation. So, what if the judge sentenced the defendant in this case to probation with the condition that he register while he is on probation? It is possible that the Court of Appeals would have reached a different result.