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Bowen v. State

The defendant's convictions did not merge because the indictment alleged and the evidence showed four separate distinct acts of molestation.

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A jury found Craig Bowen guilty of four counts of child molestation, and the trial court imposed four concurrent 20-year sentences, ordering Bowen to serve 15 years in prison and five years on probation. The convictions were affirmed by this court in an unpublished opinion.1 Upon the issuance of the remittitur, Bowen timely filed a pro se motion to modify the sentence.2 The trial court denied the motion, and Bowen filed this pro se appeal. Finding no error, we affirm. 1. Bowen contends that the trial court erred in failing to merge the convictions for sentencing. “The rule prohibiting more than one conviction if one crime is included in the other does not apply unless the same conduct of the accused establishes the commission of multiple crimes.”3 Here, the same conduct did not establish multiple crimes. Rather, the indictment alleged, and the evidence established, four separate and distinct acts of child molestation. Accordingly, no merger occurred and the trial court correctly sentenced Bowen for each crime.4

2. Bowen misunderstands the meaning of OCGA § 17-10-6.2 b, which did not require the trial court to sentence him only to the minimum period of incarceration, followed by probation. Rather, that code section mandates a split sentence for sexual offenders that includes at least the minimum term of imprisonment. A trial court may exercise its discretion and deviate from this mandatory minimum sentence only if certain conditions are satisfied.5 Here, the trial court did not abuse its discretion in refusing to deviate, and the sentences imposed were within the lawful range of punishments for child molestation.6

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