In 2004, appellant Prentiss Ashon Jackson entered a negotiated guilty plea to one count of statutory rape, registered with the sexual offender registry, and listed an address in Houston County. He was made aware of the requirement to update his registration information within 72 hours prior to any change of address. Nevertheless, in 2011, he moved to Bibb County without registering his new address within the required period of time. He was indicted, and the caption of the one-count indictment read: "Failure to register as a sex offender." The body of the count read as follows:
During trial, Jackson made an oral general demurrer to the indictment, which the trial court denied. Jackson was convicted by a jury and sentenced to 30 years, serving six years in prison without the possibility of parole and serving the remaining 24 years on probation. Jackson appealed and challenged, among other things, the sufficiency of the indictment against him. The Court of Appeals held the indictment was not fatally defective and affirmed his conviction. See Jackson v. State, 335 Ga.App. 597, 598-599 (1) (782 S.E.2d 499) (2016). This Court granted Jackson's petition for certiorari to examine whether the Court of Appeals erred in finding that the indictment was not fatally defective.
1. The standard applied by the Court of Appeals
In order to determine the sufficiency of the indictment in this case, we start with an examination of the statute referenced in it.
Subsection (n) of the statute makes it a felony to fail to comply with the requirements of the Code section.
The Court of Appeals based its holding that the indictment against appellant was not fatally defective on two conclusions: first, that the indictment charged appellant with violating a specific penal statute, OCGA § 42-1-12, and incorporated the terms of that Code section; and second, that appellant "could not admit his acts violated OCGA § 42-1-12, i.e., that he failed to register as a sex offender, and still be innocent of the charged offense." Jackson, supra, 335 Ga. App. at 599. The problem with this reasoning is that the indictment referenced the entire multi-part, 14-page Code section, which includes numerous requirements with which a convicted sexual offender must comply. In fact, the indictment did not set out or incorporate that portion of the language of subsection (f) (5) quoted in the Court of Appeals opinion. The indictment merely asserted that appellant failed to register a change of address with the Houston County sheriff's office within 72 hours of that change of address as required by OCGA § 42-1-12. But even subsection (f) (5), which sets out the steps that must be followed to update a sexual offender's registration information, contains multiple requirements. If the change of address is within the county in which the offender already is registered, the updated information must be provided within 72 hours prior to establishing the new address to the sheriff of that county. See OCGA § 42-1-12 (f) (5). If the change of address involves a move to another county, the updated information must be given within the allotted time not only to the sheriff of the county in which the offender last registered but also to the sheriff of the county to which the offender is moving. Id.
In support of its holding, the Court of Appeals relied upon its earlier opinions for the proposition that "[b]ecause an accused cannot admit an allegation that [his or] her acts were `in violation of' a specified Code section and yet not be guilty of the offense set out in that Code section, such an accusation [or indictment] is not fatally defective." (Citation and punctuation omitted.) Dixon v. State, 313 Ga.App. 379, 383 (2) (721 S.E.2d 555) (2011) (physical precedent only) (quoting State v. Shabazz, 291 Ga.App. 751, 752 (3) (662 S.E.2d 828) (2008)). But as then-Court of Appeals Judge Blackwell cautioned in his special concurrence in Dixon,
Indeed, if the allegation that a statute has been violated were the only essential element required to be set forth in an indictment, and the only test to be applied for judging whether the indictment is fatally defective were whether an accused could admit violation of the statute and yet be not guilty of the alleged offense, all that would be required of an indictment is that it accuse the defendant of being in violation of the referenced statute. But this is not enough. As authority for its assertion that the indictment in this case is not deficient, the State relies upon the Court of Appeals' opinion in Shabazz v. State
Further, such an indictment would not provide the accused with due process of law in that it would not notify the accused of what factual allegations he must defend in court. See Hill v. Williams, 296 Ga. 753, 758 (770 S.E.2d 800) (2015) ("[D]ue process requires that an indictment `put the defendant on notice of the crimes with which he is charged and against which he must defend.' [Cit.]"). Nor would it establish what facts the grand jury considered when it determined probable cause existed to charge the accused with a crime. "Unless every essential element of a crime is stated in an indictment, it is impossible to ensure that the grand jury found probable cause to indict." Smith v. Hardrick, 266 Ga. 54, 55 (1) (464 S.E.2d 198) (1995). An indictment that alleges the accused violated a certain statute, without more, would simply state a legal conclusion regarding guilt, and not an allegation of facts from which the grand jury determined probable cause of guilt was shown. Likewise, it would not allege sufficient facts from which a trial jury could determine guilt if those facts are shown at trial. A valid indictment "[uses] the language of the statute, includ[ing] the essential elements of the offense, and [is] sufficiently definite to advise [the accused] of what he must be prepared to confront." Davis v. State, 272 Ga. 818, 819 (1) (537 S.E.2d 327) (2000).
In sum, to withstand a general demurrer, an indictment must: (1) recite the language of the statute that sets out all the elements of the offense charged, or (2) allege the facts necessary to establish violation of a criminal statute. If either of these requisites is met, then the accused cannot admit the allegations of the indictment and yet be not guilty of the crime charged. In this case, however, neither of these methods for creating a legally sufficient indictment was followed.
2. The sufficiency of the indictment in this case
The indictment in this case is based upon several assumptions of fact not set forth in the indictment. The caption of the indictment seems to imply that appellant is a convicted sexual offender who was required to register his address. Nevertheless, while the indictment does reference a change of address and that defendant was required to register it with the Houston County Sheriff's officer, it does not assert that appellant previously was registered there as a sexual offender and has now established a new address within Houston County, or that appellant has moved from Houston County to an address in another county, or that he has moved to Houston County from an address in another county where he was previously registered. In other words, the indictment does not inform the accused of what alleged action or inaction would constitute a violation of even subsection (f) (5) of the Code section, which subsection was not even referenced in the indictment. Nor does it inform the parties what facts the grand jury considered in arriving at its conclusion that probable cause was shown that the accused committed a specific crime.
Moreover, the offense denominated in the indictment is "failure to register as a sex offender" and the Court of Appeals concluded appellant could not admit he violated the referenced Code section "and still be innocent of the charged offense." But this simply illustrates the problem with the indictment in this case, since failure to register is not the offense for which appellant was tried. The record reflects that appellant properly registered his original address after his guilty plea conviction; he did not fail to register as required by OCGA § 42-1-12. The evidence presented at trial related to appellant's failure to update his required registration information with a change of address, not an initial failure to register as a sexual offender.
Although the indictment in this case cited the statute appellant was accused of violating (OCGA § 42-1-12), and it referenced some of the language of that statute, it did not recite a sufficient portion of the statute to set out all the elements of the offense for which he was tried and convicted. Likewise, the indictment did not allege all the facts necessary to establish a violation of subsection (f) (5) of OCGA § 42-1-12.
The case of Relaford v. State
Supra, 306 Ga. App. at 550. By contrast, the indictment in this case did not allege appellant was a convicted sexual offender; that he was required as a sexual offender to register his address with the sheriff of the county in which he resides; that he had previously resided in Houston County and had registered his address with the sheriff of that county; or that he changed his address from one in Houston County to one in another county. It simply alleged that appellant failed to register his change of address with the Houston County sheriff's office within 72 hours as required by law. Only if additional factual allegations had been asserted in the indictment would it be clear what acts or omissions the grand jury had found probable cause to believe the appellant had committed, and what acts or omissions the trial jury would be required to find, beyond a reasonable doubt, that appellant had committed in order to find him guilty as charged.
We conclude the indictment in this case was not sufficient to withstand a general demurrer and was deficient and void. Consequently, appellant's conviction is reversed.