These appeals involve challenges to the constitutionality of OCGA § 17-10-17, Georgia’s hate crime penalty statute, which requires the enhancement of criminal sentences whenever the fact finder determines beyond a reasonable doubt “that the defendant intentionally selected any victim or any property of the victim as the object of the offense because of bias or prejudice.” Id. at a. Christopher Botts and Angela Pisciotta, along with a third individual, were indicted on charges of aggravated assault and other crimes arising out of the beating of Che and Idris Golden at Little Five Points in Atlanta. Pursuant to the notice provisions of the hate crime penalty statute, OCGA § 17-10-18, the State served Botts and Pisciotta hereinafter appellants with notice of the State’s intent to seek sentence enhancement based on the State’s allegation that appellants selected their victims because of racial bias and prejudice. Appellants moved to dismiss the sentence enhancement, contending that OCGA § 17-10-17 violated their rights under the First, Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution and the corresponding sections in the Georgia Constitution. The trial court denied their motions. Appellants thereafter pled guilty to the charges and in separate bench trials contested only the evidentiary basis for the sentence enhancement. The trial court determined that the evidence showed beyond a reasonable doubt that appellants had intentionally selected the victims as the objects of their offenses because of bias or prejudice and enhanced appellants’ sentences pursuant to OCGA § 17-10-17. This appeal ensued.
We agree with appellants that OCGA § 17-10-17 as enacted is unconstitutionally vague. A statute is generally considered vague if it is not specific enough to give persons of ordinary intelligence an understanding and adequate warning of the proscribed conduct. Land v. State , 262 Ga. 898, 899 426 SE2d 370 1993. “A statute which either forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Cits.” Connally v. General Const. Co. , 269 U.S. 385, 391 46 SC 126, 70 LE 322 1926. See also Simmons v. State , 262 Ga. 674 424 SE2d 274 1993 statute ” ‘sufficiently definite if its terms furnish a test based on normal criteria which persons of common intelligence who come in contact with the statute may use with reasonable safety in determining its command’ “ .
