                               SECOND DIVISION
                                ANDREWS, P. J.,
                            MILLER and BRANCH, JJ.

                    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.
                                http://www.gaappeals.us/rules


                                                                  November 16, 2015




In the Court of Appeals of Georgia
 A15A0905. MORROW v. THE STATE.

      BRANCH, Judge.

      Robert Leslie Morrow was tried by a Cherokee County jury and convicted of

one count of sexual assault in violation of OCGA § 16-6-5.1 (b) (1).1 He now appeals

from the denial of his motion for a new trial, asserting that because he was employed

as a paraprofessional, and not a teacher, the statute did not apply to him and the trial

court therefore erred in denying his motion to quash the indictment; that the evidence

was insufficient to sustain his conviction because it failed to show either that he was

a teacher or that he had supervisory or disciplinary authority over the alleged victim;


      1
        As discussed more fully below, that statutory provision defines sexual assault
as including sexual contact between a teacher and a student enrolled at the school
where the teacher is employed and over whom the teacher has “supervisory or
disciplinary authority.”
and that the trial court erred in admitting similar transaction evidence as to his

relationship with the alleged victim. Morrow also challenges that portion of his

probated sentence which imposed a waiver of his Fourth Amendment rights. Finding

that the State failed to prove that Morrow had supervisory or disciplinary authority

over the victim, we agree that the statute did not apply to him and we therefore

reverse his conviction.

      On appeal from a criminal conviction, the defendant is no longer entitled to a

presumption of innocence and we therefore construe the evidence in the light most

favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702

SE2d 747) (2010). So viewed, the record shows that in December 2010, Morrow, who

was then 27 years old, was employed as a paraprofessional at River Ridge High

School, where he also served as a wrestling coach.2 Morrow was hired as a

paraprofessional to attend to the needs of a specific, special-needs child, referred to

by the parties as “Pablo.” Morrow accompanied Pablo to all of his classes, and during

the victim’s freshman and sophomore years, she shared both home room and a math

class with Pablo. The victim understood that Morrow’s job was different from that


      2
       The record shows that the victim was not a member of the wrestling team and
that Morrow never served as her coach.

                                          2
of a paraprofessional whose job it was to assist a classroom teacher. Specifically, the

victim testified that a different paraprofessional assisted her math teacher during her

sophomore year, and she characterized that paraprofessional as a “disciplinary figure.

He would monitor the classroom when [the teacher] left the room.” By contrast, the

victim knew that Morrow’s sole job was to sit with Pablo, whom the victim described

as having “mental issues,” and ensure that Pablo did not disrupt the class. Morrow

never disciplined or otherwise exercised any authority over the victim. When asked

if she believed that Morrow had the authority to discipline her, the victim responded

that she did not know.

      During December of 2010, the victim was placed in River Ridge’s in-school-

suspension program (“ISS”) for eight days.3 At some point during that eight-day

period, Pablo was also placed in ISS for a single day. Because his job required him

to be with Pablo during school hours, Morrow accompanied Pablo to ISS. The victim,

who was 16 years old at the time of the charged crime, acknowledged that prior to

encountering Morrow in ISS, she had given Morrow her phone number by leaving a

note on his car window. On the day that Morrow accompanied Pablo to ISS, the


      3
        The ISS program had its own teacher, and that teacher also served as the
victim’s track coach.

                                          3
victim again gave Morrow her phone number, and he then sent her a text message so

she would have his phone number. The two then began exchanging what the victim

described as flirtatious text messages.

      On the night of Saturday, December 11, 2010, the victim attended the birthday

party of a friend and fellow student. During that party, she and Morrow exchanged

text messages. The victim first testified that she could not remember who initiated

this exchange. When asked about Morrow’s statement to police, in which he claimed

that the victim texted him from the party, told him she was bored, and wanted to meet,

the victim responded that sending such a message “sounds like something I would

have done at the time.”

      Following the exchange of text messages with Morrow, the victim left the party

and drove her car to meet Morrow in the parking lot of a nearby grocery store. The

victim got into Morrow’s car and Morrow drove them to another parking lot where

the couple had sexual contact and the victim performed oral sex on Morrow. Morrow

then drove the victim back to her car and she returned to the party.

      On December 17, 2010, the victim withdrew from River Ridge and enrolled at

a high school in Fulton County. In the weeks immediately following her withdrawal

from River Ridge, the victim met Morrow on between two and four occasions and

during at least one of those encounters the couple had sexual intercourse.


                                          4
Approximately six months after her encounters with Morrow, the victim told her

mother about the couple’s sexual contact, and the mother took the victim to report the

matter to local law enforcement authorities. Following a police investigation, Morrow

was arrested and indicted under OCGA § 16-5-5.1 on one count of sexual assault.

Prior to trial, Morrow moved to quash the indictment, arguing that because he was a

paraprofessional, rather than a teacher, the statute under which he was indicted did

not apply to him. Following a hearing, and relying on this Court’s decision in Hart

v. State, 319 Ga. App. 749 (738 SE2d 331) (2013)4, the trial court denied the motion

      4
         In Hart, the Court found that the term “teacher,” as used in OCGA § 16-6-5.1
(b) (1) included a paraprofessional who had supervisory and disciplinary authority
over students. 319 Ga. App. at 350. In reaching this conclusion, the Court
acknowledged the rule that the words of statutes must be given their ordinary and
logical meaning, and concluded that “[t]he ordinary, logical, and common meaning
of the term ‘teacher’ would include a paraprofessional who taught in a high school
classroom.” Id. (punctuation omitted). To hold otherwise, the Court reasoned, “would
contravene the legislature’s intention to criminalize sexual activity between a school
administrator or a school employee who teaches and a student at the school.” We
have some concerns about the reasoning employed in Hart because the Court
expressly acknowledged, but then declined to apply, the rule that “courts must
generally refrain from expanding the scope of penal statutes by implication.” 319 Ga.
App. at 750, citing Wood v. State, 219 Ga. 509, 513 (134 SE2d 8) (1963) (holding
that a statute criminalizing certain conduct by an officer of the State did not apply to
municipal officers). See also Fleet Finance, Inc. of Georgia v. Jones, 263 Ga. 228,
231 (3) (430 SE2d 352) (1993) (criminal statutes “must be construed strictly against
criminal liability and, if [a statute] is susceptible to more than one reasonable
interpretation, the interpretation most favorable to the party facing criminal liability
must be adopted”); State v. Hammonds, 325 Ga. App. 815, 817-818 (755 SE2d 214)
(2014) (declining to find that a school secretary was an “administrator” under OCGA
§ 16-6-5.1 (b) (1)). The instant case, however, does not require us to consider whether
Hart was correctly decided, as we are reversing Morrow’s conviction on other
grounds.

                                           5
to quash. The lower court certified its order for immediate review, but this Court

denied Morrow’s application for an interlocutory appeal. The case proceeded to a jury

trial, at which Morrow was found guilty. Following his conviction, Morrow filed a

motion for a new trial, which was denied. This appeal followed.

      1. The statute under which Morrow was prosecuted provides:

      (b) A person who has supervisory or disciplinary authority over another
      individual commits sexual assault when that person: (1) Is 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; provided,
      however, that such contact shall not be prohibited when the actor is
      married to such other individual[.]


OCGA § 16-6-5.1.

      To convict a person under this statutory provision, therefore, the State must

prove both that the defendant was “a teacher, principal, assistant principal, or other

administrator” of the school at which the victim enrolled and that the defendant had

supervisory or disciplinary authority over the victim. See Hammonds, 325 Ga. App.

at 818 (to be guilty of sexual assault against a student enrolled at the school where he

works, the defendant must have supervisory authority over that student); Whitehead

v. State, 295 Ga. App. 562, 563 (1) (672 SE2d 517) (2009) (same); Groves v. State,

                                            6
263 Ga. App. 828, 830 (2) (590 SE2d 136) (2003) (same). In this context,

“supervisory or disciplinary authority” means that the teacher had the power either

to direct the student in question, to require the student to comply with some form of

directive (whether it be a school rule or an instruction from the defendant), or to take

disciplinary action against the student for failure to comply with such a directive. See

Randolph v. State, 269 Ga. 147, 150 (2) (496 SE2d 258) (1998).

      On appeal, Morrow argues that even if he can be considered a teacher under

OCGA § 16-6-5.1 (b) (1), the State failed to prove that he had supervisory or

disciplinary authority over the victim. We agree. Although the victim testified that

she viewed Morrow as “an authority figure,” the State introduced no evidence

showing that Morrow had any kind of general supervisory or disciplinary authority

over students at the school. Moreover, a showing that all teachers at a school,

including the accused, have some kind of general authority over students in the

school, is insufficient to demonstrate the supervisory or disciplinary authority

required to convict a defendant under OCGA § 16-6-5.1. Rather, the statute requires

the State to prove that the defendant had some kind of direct disciplinary or

supervisory authority over the victim. See Hammonds, 325 Ga. App. at 818 (even

assuming school secretary had some form of “supervisory or disciplinary authority


                                           7
over students at the school in general,” the record failed to show that she had such

authority over any of the three victims specifically). Compare Whitehead, 295 Ga.

App. at 564 (1) (State proved that defendant had supervisory authority over victim

where evidence showed that defendant served as the faculty advisor to the school’s

Quiz Bowl team, the victim was a member of that team, and both the defendant and

the victim testified that the defendant “was in charge of the students on the Quiz

Bowl team at practices and at tournaments”); Groves, 263 Ga. App. at 828-829

(teacher had supervisory authority over both victims, where one victim was a student

in his class and the other participated in a “teacher cadet” program supervised by the

defendant).

      Here, the State offered no evidence to show that Morrow had any kind of direct

authority over the victim, either as a paraprofessional/teacher or as a wrestling coach.

There was no testimony or other evidence showing that Morrow had the authority to

give directives to the victim, to enforce school rules against the victim, or even to

refer the victim to administrators for discipline as a result of her violation of either

the defendant’s directives or some other school rule or policy. Furthermore, the victim

testified that she understood that Morrow’s job was to accompany Pablo to his classes

and ensure that Pablo (as opposed to any other student) did not disrupt class. And


                                           8
when asked whether Morrow had any kind of authority over her specifically, the

victim replied that she did not know.

        Given the State’s failure to prove that Morrow had any supervisory or

disciplinary authority over the victim, it failed to prove an essential element of the

charged crime. Accordingly, we must reverse Morrow’s conviction.

        2. In light of our holding in Division 1, we need not address Morrow’s

remaining claims of error.

        Judgment reversed. Andrews, P. J., concurs. Miller, J., concurs in judgment

only.




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